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2003 Abortion Law Upheld by Supreme Court


From NPR News, this is ALL THINGS CONSIDERED. I'm Robert Siegel.


And I'm Michele Norris.

The new conservative Supreme Court majority handed abortion opponents a major victory today. By a 5-4 vote, the court upheld a federal law banning a procedure called intact dilation and extraction. Both sides of the abortion debate called the court's decision a seismic shift on the issue. They said it sets the stage for more restrictions from the states.

NPR legal affairs correspondent Nina Totenberg reports.

NINA TOTENBERG: The procedure that opponents call partial birth abortion is, by all accounts, done in the second trimester of pregnancy, when the fetus is usually not yet viable, that is able to live outside the womb.

The procedure is defined as one in which the fetus emerges from the womb intact to the navel, and the head is crushed inside the womb to allow it to come without injuring the woman and to reduce the number of passes with sharp instruments inside the womb.

Just seven years ago, the Supreme Court struck down a state law that banned the procedure because there was no exception allowing it when necessary for the health of the woman. Congress then passed a law declaring that there are no circumstances in which a health exception is necessary and it banned the procedure nationwide.

The law was invalidated in six lower courts, but in the interim years, the composition of the Supreme Court changed with Justice Sandra Day O'Connor retiring and replaced by Bush-appointee Samuel Alito. And today the newly constituted Supreme Court upheld the federal law.

Justice Anthony Kennedy wrote the decision, declaring that the federal ban does not pose an undue burden on a woman's right to abortion because other methods of abortion are available. He acknowledged that Congress had been incorrect in its finding that the procedure is never medically necessary. But, he said, Congress has a legitimate interest in promoting fetal life and a moral right to ban a practice it deems to be too close to infanticide. The law, he said, need not give abortion doctors unfettered choice in the course of their medical practice.

In a rare oral dissent from the bench this morning, Justice Ruth Bader Ginsburg called the decision alarming, saying that for the first time in 30 years the court was blessing an abortion regulation that has no exception protecting a woman's health.

Today's decision, she said, cannot be understood as anything other than a bold effort by new justices to chip away at the right to abortion established 33 years ago and reaffirmed ever since. Advocates on both sides of the issue characterized the ruling as a seismic shift. Jay Sekulow is chief counsel of Pat Robertson's Center for Law and Justice.

Mr. JAY SEKULOW (Chief Counsel, American Center for Law and Justice): I think this is a momentum shift of significant proportions because, first of all, it's the first time you really have a substantive abortion procedure that's been prohibited and the court said it's fine to prohibit it.

TOTENBERG: Nancy Northrup is president of the Center for Reproductive Rights.

Ms. NANCY NORTHRUP (President, Center for Reproductive Rights): Today the court reversed over 30 years of commitment to making sure that abortion regulations do not harm women's health.

TOTENBERG: Both agreed, too, that today's ruling would spur states to enact many new regulations that will likely make abortions more difficult to obtain. Again, Nancy Northrup.

Ms. NORTHRUP: It really opens the flood to new regulations. In the wake of this decision, we're going to see a host of new states statutes that may be trying to go procedure by procedure by procedure to make abortion unaccessible to women.

TOTENBERG: Sekulow said he expects much of the emphasis in states to be on informed consent laws. In South Carolina, for instance, abortion opponents have been trying to pass a bill that would require women seeking an abortion to be shown an ultrasound of the fetus.

Justice Kennedy's opinion for the court did not close the door entirely to the possibility of women getting so-called partial birth abortions but, he said, women would have to go to court on a case-by-case basis. Doctors and abortion rights advocates said that's not realistic. Here's Eve Gartner of Planned Parenthood.

Ms. EVE GARTNER (Senior Staff Attorney, Planned Parenthood): The idea that women could bring as applied challenges literally as they are in the hospital bleeding or suffering some serious medical harm and need a banned abortion, the courts suggests at that point the woman could bring a federal lawsuit. But just saying that shows how absurd and unworkable that remedy is.

TOTENBERG: Joining Justice Kennedy's majority opinion today were Justices Antonin Scalia and Clarence Thomas, and the court's two new Bush appointees, Chief Justice John Roberts and Justice Alito. Joining Justice Ginsburg in dissent were Justices John Paul Stevens, David Souter and Stephen Breyer.

Nina Totenberg, NPR News, Washington. Transcript provided by NPR, Copyright NPR.

Nina Totenberg is NPR's award-winning legal affairs correspondent. Her reports air regularly on NPR's critically acclaimed newsmagazines All Things Considered, Morning Edition, and Weekend Edition.
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