The Supreme Court Upholds a Partial Birth Abortion Ban

The Supreme Court in a close 5-4 decision upheld a Federal ban on partial birth abortions in Gonzales v. Carhart. You can read the opinions here. The decision was a very close one, as an earlier ban by the State of Nebraska of the procedure was struck down 5-4. In that case Justice Sandra Day O'Conner joined the majority in striking down the State law. However in this case, her replacement Samuel Alito voted in favor of the ban.

The majority opinion was authored by Kennedy, and joined by Roberts, Scalia, Thomas, and Alito. The dissenting opinion was written by Ginsburg and joined by Stevens, Souter, and Breyer. The opinion applied the same "undue burden" test as in Planned Parenthood v. Casey. Ginsberg writes quite strongly in opposition to the majority saying:

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 (ACOG). It blurs the line, firmly drawn in Casey, between previability and postviability abortions. And, for the first time since Roe, the Court blesses a prohibition with no exception safeguarding a woman’s health.


The decision bans a specific method of abortion, and means doctors who perform the prohibited procedure may face criminal penalties. The federal law was enacted in 2003, but has not yet taken effect because of the legal challenges to it. The ruling will only impact a small portion of abortions. However, it will bring abortion to the forefront of political discourse in the US, and will put it front-and-center in the 2008 presidential campaign.

The decision is noteworthy for a number of other reasons. When Justice Alito worked for the Reagan administration, he advocated in White House Memos that abortion opponents should try to chip away gradually at the legality of the procedure, rather than trying to end it outright. This decision seems to be just such a move.

Also, both Scalia and Thomas indicated that there may be a good case to be made for banning this law under the Commerce Clause. Congress' authority to regulate abortion comes under its Constitutional authority to regulate interstate commerce. This is a complicated topic, and one that goes beyond the scope of this blog, but essentially the commerce clause allows the federal government to regulate a number of things, including in the past important parts of the New Deal, and the Civil Rights Act of 1964. The use of the Commerce Clause by Congress to allow it to exercise its power has been a very controversial topic, and one which I see echoes of in Europe's attempts to govern itself. Under the 10th amendment, the Federal government has the power to regulate only those matters specifically delegated to it under the Constitution. Other powers are reserved to the States or the people. The Commerce Clause is one of the few powers specifically delegated to the federal government and its interpretation is quite important in determining the extent of the Federal Government's powers. In recent years, the more conservative members of the court have begun to take Congress' Commerce Clause powers back a notch. Thomas and Scalia both seemed to indicate in a separate concurring opinion that the law could be challenged under the Commerce Clause.

Finally, Senator Harry Reid, a Democrat from Utah came out looking like a very big fool in all of this. Reid is the Democratic majority leader of the Senate and a Mormon. He voted for the ban in 2003. However after the opinion on NPR he criticized the opinion and argued it was wrongly decided. So after voting for the ban, he now claims that it should be ruled unconstitutional. If it was unconstitutional in 2003, why did Reid vote for it?

In any event, the opinion marks yet another resurgence of the abortion debate in the US, and will unfortunately be an excuse for a great deal of uninformed and ignorant ranting by both sides.

Comments

Derek, thanks for providing an excellent overview of the Court's latest case on the, at least in the US, forever controversial topic, of abortion.

I think you are right in stating that one impact the case will have is to put the topic firmly back on the political agenda. Secondly, it does look like the tactic of the pro-life movement, to bit by bit dismantling the right to abortion, as laid down by Roe, has for now succeeded. Whether it will do so in the long run remains to be seen.

As I am no expert on the topic of US constitutional law and the Court's case law on abortion, it is sufficient to say that, being from a country where abortion has been legal for almost 35 years, it is indeed a wonder that the topic remains so controversial in the otherwise progressive US.

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