US Supreme Court upholds ban on partial birth abortions

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Wednesday, April 18, 2007

Justices of the US Supreme Court, circa 2006

The Supreme Court of the United States on Wednesday April 18 has upheld the federal Partial-Birth Abortion Ban Act of 2003. The 5-4 vote reflected the change in vote count resulting from the retirement of Justice O'Connor and the confirmation of Chief Justice Roberts and Justice Alito.

The Intact dilation and extraction procedure, also known as partial birth abortion, involves removing an intact late-term fetus from the womb via the cervix. While it is a relatively rare operation - 0.17% of all abortions in the US in 2000, it has become a focal point in the abortion debate.

The Partial-Birth Abortion Ban Act bans the procedure in cases where the fetus is terminated during the operation, unless it is performed to to save the life of the mother.

Justice Kennedy wrote in the opinion of the court: "respondents have not demonstrated that the Act would be unconstitutional in a large fraction of relevant cases." Further, he said, "Respondents have not demonstrated that the Act, as a facial matter, is void for vagueness, or that it imposes an undue burden on a woman’s right to abortion based on its overbreadth or lack of a health exception. For these reasons the judgments of the Courts of Appeals for the Eighth and Ninth Circuits are reversed."

In a concurring opinion, Justice Thomas stated that he joins "the Court’s opinion because it accurately applies current jurisprudence, including Planned Parenthood of Southeastern Pa. v. Casey, 505 U. S. 833 (1992)."

In dissent Judge Ginsburg wrote: "Today’s decision is alarming. It refuses to take Casey and Stenberg seriously. It 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."

Justice Kennedy's words also recall the complicated issues of standing related to such cases. An issue in Roe v. Wade was the impossibility of any individual having standing in a court proceeding regarding abortion rights, since court proceedings take more than the 9 months of pregnancy, retiring any individual plaintiff's standing before an appeals process can take place. The criterion of "a large fraction of relevant cases" may effectively deny standing to any plaintiffs who wish to litigate particular restrictions in some relevant future cases.

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