FINAL UPDATE 3:30 p.m.

Dividing 5-4, the Supreme Court on Wednesday gave a sweeping — and only barely qualified — victory to the federal government and to other opponents of abortion, upholding the 2003 law that banned what are often called “partial-birth abortions.” The majority insisted it was following its abortion precedents, so none of those was expressly overruled. The dissenters strenuously disputed that the ruling was faithful to those precedents, saying the majority had not concealed its “hostility” to those decisions.

Justice Anthony M. Kennedy wrote for the majority in the first-ever decision by the Court to uphold a total ban on a specific abortion procedure — prompting the dissenters to argue that the Court was walking away from the defense of abortion rights that it had made since the original Roe v. Wade decision in 1973 recognized a constitutional right to end pregnancy medically. Roe v. Wade was not overturned by the new ruling, as some filings before the Court had urged.

The Court said that it was upholding the law as written — that is, its facial language. It said that the lawsuits challenging the law faciallly should not have been allowed in court “in the first instance.” The proper way to make a challenge, if an abortion ban is claimed to harm a woman’s right to abortion, is through an as-applied claim, Kennedy wrote. His opinion said that courts could consider such claims “in discrete and well-defined instances” where “a condition has or is likely to occur in which the procedure prohibited by the Act must be used.”


Kennedy said the Court was assuming that the federal ban would be unconstitutional “if it subjected women to significant health risks.” He added, however, that “safe medical options are available…The Act allows…a commonly used and generally accepted method, so it does not construct a substantial obstacle to the abortion right.” His opinion noted that the Bush Administration “has acknowledged that pre-enforcement, as-applied challenges to the Act can be maintained.”

The majority said it had not “uncritically” deferred to Congress’ factual findings in passing the Partial-Birth Abortion Ban Act of 2003 — including its finding that the banned procedure was never medically necessary. “We do not in the circumstances here place dispositive weight on Congress’ findings,” Kennedy wrote, adding that the Court also was not accepting the Bush Administration argument that the law could be upheld on the basis of those findings alone. He added: “The Court retains an independent constitutional duty to review factual findings where constitutional rights are at stake.”

Kennedy insisted — contrary to the dissenters’ angry claim — that the Court had not abandoned its prior abortion rulings. “The Court’s prececedents,” he said, “instruct that the Act can survive this facial attack.” He said there was “medical disagreement whether the Act’s prohibition would ever impose significant health risks on women” — a prohibition based in significant part on the finding that the procedure was never medically necessary.

But Kennedy said the Act could stand “when medical uncertainty persists…The Court has given state and federal legislatures wide discretion to pass legislation in areas where there is medical and scientific uncertainty.” Quoting from a 1974 ruling (Marshall v. U.S.), the opinion said that “When Congress undertakes to act in areas fraught with medical and scientific uncertainties, legislative options must be especially broad.”

Justice Ruth Bader Ginsburg, speaking in the courtroom for the dissenters, called the ruling “an alarming decision” that refuses “to take seriously” the Court’s 1992 decision in Planned Parenthood v. Casey reaffirming most of Roe v. Wade and its 2000 decision in Stenberg v. Carhart striking down a state partial-birth abortion law.

Ginsburg, in a lengthy statement, said “the Court’s opinion tolerates, indeed applauds, federal intervention to ban nationwide a procedure found necessary and proper in certain cases by the American College of Obstetricians and Gynecologists. For the first time since Roe, the Court blesses a prohibition with no exception protecting a woman’s health.” She said the federal ban “and the Court’s defense of it cannot be understood as anything other than an effort to chip away at a right declared again and again by this Court — and with increasing comprehension of its centrality to women’s lives. A decision of the character the Court makes today should not have staying power.”

That final comment, concluding angry remarks that were delivered without an open display of emotion, clearly was a suggestion that the ruling might not survive new appointments to the Court — just as the arrival of Chief Justice John G. Roberts, Jr., and, especially, Justice Samuel A. Alito, Jr. — had led to the switch she claimed had come about this time. Ginsburg pointedly noted that the Court is “differently composed than it was when we last considered a restrictive abortion regulation” — in Stenberg in 2000.

In the course of her dissenting opinion, Ginsburg accused the majority of offering “flimsy and transparent justifications” for upholding the ban. She also denounced the Kennedy opinion for its use of “abortion doctor” to describe specialists who perform gynecological services, “unborn child” and “baby” to describe a fetus, and “preferences” based on “mere convenience” to describe the medical judgments of trained doctors. She also commented: “Ultimately, the Court admits that ‘moral concerns’ are at work, concerns that cdould yield prohibitions on any abortion.”

Joining Kennedy in the majority were the Chief Justice, and Justices Alito, Antonin Scalia and Clarence Thomas. With Ginsburg in dissent were Justices Stephen G. Breyer, David H. Souter and John Paul Stevens. Thus, Alito’s replacement of retired Justice Sandra Day O’Connor made the most difference in turning the Court around from its 2000 decision in the Stenberg case. O’Connor was in the majority in that decision, as were the four dissenters in this new decision.

Since the Chief Justice was in the majority in the new cases, he assigned the opinion-writing to Kennedy. Interestingly, neither the Chief Justice nor Justice Alito joined a brief separate opinion written by Justice Thomas and joined by Justice Scalia saying that they wanted to reiterate their view “that the Court’s abortion jurisprudence…has no basis in the Constitution.” That does not necessarily mean Roberts and Alito disagree with that view, but perhaps meant only that they did not believe it needed to be said at this point.

The ruling came in the consolidated cases of Gonzales v. Carhart (05-380) and Gonzales v. Planned Parenthood (05-1382).

In another 5-4 decision, the Court ruled that an individual convicted of attempted burglary under state law has committed a “violent felony” for purposes of a mandatory 15-year sentence under federal law dealing with armed criminals. The ruling came in James v. U.S. (05-9264). Alito wrote for the majority. The voting produced an unusual array: with Alito in the majority were the Chief Justice and Justices Breyer, Kennedy and Souter, and with Ginsburg and Stevens joining a Scalia dissent. Thomas filed a separate dissent.

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