Ruling likely to bring new battles over abortion

WASHINGTON — The Supreme Court on Wednesday upheld a ban on a controversial method of abortion, a ruling activists on both sides of the issue predicted will encourage anti-abortion forces to push for other restrictions in state legislatures.

The court's 5-4 decision on the mid- to late-term abortion procedure marked the first time justices have agreed a specific abortion procedure could be banned. It is also the first time since the landmark Roe v. Wade decision in 1973 that justices approved an abortion restriction that did not contain an exception for the health of the woman, although it does contain an exception to save her life.

"The court has given anti-choice state lawmakers the green light to open the floodgates and launch additional attacks on safe, legal abortion, without any regard for women's health," said Nancy Keenan, president of NARAL Pro-Choice America, which supports abortion rights.

Anti-abortion leaders hailed the ruling upholding the law passed by Congress in 2003, and said it would embolden statehouse allies nationwide.

"The time is now right to launch aggressive legal challenges across America to abortion on demand," said Troy Newman, president of Operation Rescue, a group that says its aim is to end abortion in the United States. "The court has now said it's OK to ban procedures. We can do more than just put hurdles in front of women seeking abortions; we can put roadblocks in front of them."

In its decision, the high court said the "government has a legitimate and substantial interest in preserving and promoting fetal life."

The ruling upheld the national ban on a disputed mid- and late-term abortion method medically known as dilation and extraction, or D&X, that critics call partial-birth abortion. Indeed, the name of the law is the Partial Birth Abortion Ban Act. Doctors who violate the law could face up to two years in federal prison. The law has not taken effect, pending the outcome of the legal fight.

Although Wednesday's opinion stopped well short of overturning the Roe v. Wade decision guaranteeing the basic right to abortion, the court majority said it was prepared to uphold new restrictions on doctors who perform them and on women who seek them.

Justice Anthony Kennedy, speaking for the court, said the government may not forbid abortion outright, but it "may use its voice and its regulatory authority" to dissuade women from ending pregnancies.

He said the ban on the controversial procedure was valid because other abortion procedures were available.

Kennedy was joined by President Bush's appointees — Chief Justice John Roberts and Justice Samuel Alito — and Justices Antonin Scalia and Clarence Thomas. In a separate statement, Thomas and Scalia said again they would vote to overrule Roe v. Wade entirely.

The decision on the ban is likely to throw the abortion issue into the campaign for the White House. Two of the court's strongest supporters of the right to abortion are also its oldest justices: John Paul Stevens will be 87 Friday, and Ruth Bader Ginsburg is 74. Whoever wins the 2008 presidential election might get the chance to nominate one or more new justices.

Ginsburg, the court's only woman, called Wednesday's decision "alarming."

It "cannot be understood as anything other than an effort to chip away at a right declared again and again by this court," she said.

She noted that this dispute was about how, not whether, abortions would be performed after the first trimester. Despite Kennedy's talk of "promoting fetal life," the ban "targets only a method of abortion," she said. "The woman may abort the fetus, so long as her doctor uses another method, one her doctor judges less safe for her."

She also called the decision demeaning to women. It "pretends" to protect them "by denying them any choice in the matter," she said.

Stevens and Justices David Souter and Stephen Breyer joined her dissent.

The ruling culminates a 12-year campaign by the National Right to Life Committee, which said the procedure was akin to "infanticide" because the fetus was killed as it emerged from the mother's body.

Dr. LeRoy Carhart, the Bellevue, Neb., doctor who challenged the federal ban, said, "I am afraid the Supreme Court has just opened the door to an all-out assault on" Roe v. Wade.

In Roe v. Wade, the court ruled that women could choose to have an abortion before the time the fetus could live outside the womb, after about the sixth month of a pregnancy. While about 90 percent of abortions take place in the first three months of a pregnancy, some women wait longer, until the fourth or fifth month. Then, surgery is required, and the dispute concerns how this surgery is performed.

After the woman is given anesthesia, the doctor uses instruments to remove the fetus. Usually, this occurs through dismemberment, in which the fetus is removed in parts. But some doctors seek to remove the fetus intact — by partially delivering it, inserting a sharp object into the skull and removing brain matter — since they contend that there is less chance of causing bleeding or infection in the woman.

The first procedure, dismemberment, has not been challenged. The Partial Birth Abortion Ban Act makes the second a crime because the fetus is partly outside the womb when it dies.

Bush praised the decision as a step toward "protecting human dignity and upholding the sanctity of human life." He signed the ban into law four years ago, but it had been struck down as unconstitutional by three lower courts.

Abortion-rights advocates voiced outrage. "Today's ruling is a stunning assault on women's health and the expertise of doctors who care for them," said Nancy Northrup, of the Center for Reproductive Rights. "This court believes that members of Congress — not doctors — are in the best position to make medical decisions for their patients."

The center, which has litigated many anti-abortion cases, said the decision paves the way for Congress and state legislatures to enact additional bans on abortions as early as 12 weeks.

In one sense, the ruling might have more symbolic than practical significance. By most estimates, the procedure is used in fewer than 5,000 of the more than 1.3 million abortions performed nationwide each year.

In recent years, anti-abortion state lawmakers have pushed a wide variety of proposals intended to restrict access to abortion or prompt women to reconsider their decision to have one. Many have taken effect; many others have been knocked down by the courts.

Douglas Johnson, legislative director of the National Right to Life Committee, said Wednesday's ruling could encourage legislative efforts in specific areas, notably laws that require a woman considering abortion to be instructed about pain that a fetus might feel.

From the abortion-rights perspective, attorney Janet Crepps, of the Center for Reproductive Rights, said she expected some states to lengthen waiting periods imposed on women seeking abortions before they can have the procedure.

Other bills, she said, might create or beef up requirements that women receive pre-abortion counseling intended to give them second thoughts.

"States that have waiting periods or biased counseling, they're going to look at this opinion and consider whether they can make those requirements much more harsh," Crepps said.

Compiled from The Associated Press,

the Los Angeles Times, The Washington Post, the Chicago Tribune and Seattle Times archives.