Reversing the decisions of two Appeals courts, the U.S. Supreme Court upheld the Partial-Birth Abortion Ban Act in a highly controversial 5-4 decision that has galvanized abortion foes and frightened abortion-rights advocates. Writing for the majority, Justice Anthony Kennedy said that opponents of the legislation failed to show that the law Ã¢â‚¬Å“is void for vagueness, or that it imposes an undue burden on a womanÃ¢â‚¬â„¢s right to abortion based on its overbreadth or lack of health exception.Ã¢â‚¬Â
However, what has caught the attention of people on both sides of the issue is some of the language that Justice Kennedy used in composing the majority opinion. Ã¢â‚¬Å“The government may use its voice and its regulatory authority to show its profound respect for the life within the woman,Ã¢â‚¬Â Kennedy wrote at one point, and that Ã¢â‚¬Å“the government has a legitimate and substantial interest in preserving and promoting fetal life.Ã¢â‚¬Â He also refers to the Ã¢â‚¬Å“StateÃ¢â‚¬â„¢s interest in promoting respect for human life at all stages in the pregnancy.Ã¢â‚¬Â
Kennedy adds that Ã¢â‚¬Å“the State may use its regulatory authority to bar certain procedures and substitute others, all in furtherance of its legitimate interests in regulating the medical profession in order to promote respect for life, including life of the unbornÃ¢â‚¬Â and that the Ã¢â‚¬Å“ActÃ¢â‚¬â„¢s ban Ã¢â‚¬Â¦ furthers the GovernmentÃ¢â‚¬â„¢s objectivesÃ¢â‚¬Â in this realm.
Much of the majority opinion is filled with detailed medical analysis describing the Ã¢â‚¬Å“dilation and extractionÃ¢â‚¬Â method of performing late-term abortions. According to the majority, Ã¢â‚¬Å“medical uncertainty persistsÃ¢â‚¬Â with regard to the health benefits of the procedure. In fact, this Ã¢â‚¬Å“documented medical disagreementÃ¢â‚¬Â about the ActÃ¢â‚¬â„¢s potential for placing Ã¢â‚¬Å“significant health risks on womenÃ¢â‚¬Â seems to be at the very crux of the majority opinion.
Ã¢â‚¬Å“The Act is not invalid on its face where there is uncertainty over whether the barred procedure is ever necessary to preserve a womanÃ¢â‚¬â„¢s health, given the availability of other abortion procedures that are considered to be safe alternatives,Ã¢â‚¬Â Kennedy writes. He also notes pointedly that Ã¢â‚¬Å“medical uncertainty does not foreclose the exercise of legislative power in the abortion context any more than it does in other contexts.Ã¢â‚¬Â
One of the most outspoken critics of the majority opinion is Justice Ruth Bader Ginsburg, who composed the dissenting opinion on behalf of Justices Stevens, Souter, and Breyer. Ã¢â‚¬Å“TodayÃ¢â‚¬â„¢s decision is alarming,Ã¢â‚¬Â she wrote. Ã¢â‚¬Å“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 (ACOG). And, for the first time since Roe, the Court blesses a prohibition with no exception safeguarding a womanÃ¢â‚¬â„¢s health.Ã¢â‚¬Â
Ginsburg adds that Ã¢â‚¬Å“the Court upholds an Act that surely would not survive under the close scrutiny that previously attended state-decreed limitations on a womanÃ¢â‚¬â„¢s reproductive choices.Ã¢â‚¬Â She also called the CourtÃ¢â‚¬â„¢s justifications for upholding the law Ã¢â‚¬Å“flimsy and transparent.Ã¢â‚¬Â
Ã¢â‚¬Å“Ultimately,Ã¢â‚¬Â she writes, Ã¢â‚¬Å“the Court admits that Ã¢â‚¬Ëœmoral concernsÃ¢â‚¬â„¢ are at work, concerns that could yield prohibitions on any abortion. Notably, the concerns expressed are untethered to any ground genuinely serving the GovernmentÃ¢â‚¬â„¢s interest in preserving life. By allowing such concerns to carry the day and case, overriding fundamental rights, the Court dishonors our precedent.Ã¢â‚¬Â The CourtÃ¢â‚¬â„¢s decision, she says, Ã¢â‚¬Å“reflects ancient notions about womenÃ¢â‚¬â„¢s place in the family and under the Constitution.Ã¢â‚¬Â
Ã¢â‚¬Å“In sum,Ã¢â‚¬Â she concludes, Ã¢â‚¬Å“the notion that the Partial-Birth Abortion Ban Act furthers any legitimate governmental interest is, quite simply irrational. In candor, the Act, and the CourtÃ¢â‚¬â„¢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 womenÃ¢â‚¬â„¢s lives.Ã¢â‚¬Â
TodayÃ¢â‚¬â„¢s significant decision highlights, among other things, the intensely divisive nature of the CourtÃ¢â‚¬â„¢s current makeup. More than that, however, it seems likely that, in light of the majorityÃ¢â‚¬â„¢s blunt language supporting the sanctity of fetal life and the governmentÃ¢â‚¬â„¢s obligation to promote and protect it the decision may very well open the door to legal challenges of Roe v. Wade and of womenÃ¢â‚¬â„¢s health and reproductive rights in general.