Breaking: Supreme Court Upholds Partial-Birth Abortion Ban

18 04 2007

Filed under: Partial-Birth Abortion, Supreme Court, Politics, Roberts, Ginsburg, Kennedy

UPDATED – 4/20: Harry Reid’s double standard…Scroll for updates…

Common sense is the light at the end of the tunnel. In a predictable, partisan ruling (5-4), the Supreme Court upheld the Partial Birth Abortion Ban Act that Congress passed and President Bush signed into law in 2003 does not violate a woman’s constitutional right to an abortion.

From the AP:

The Supreme Court upheld the nationwide ban on a controversial abortion procedure Wednesday, handing abortion opponents the long-awaited victory they expected from a more conservative bench.

The 5-4 ruling said the Partial Birth Abortion Ban Act that Congress passed and President Bush signed into law in 2003 does not violate a woman’s constitutional right to an abortion.

The opponents of the act “have not demonstrated that the Act would be unconstitutional in a large fraction of relevant cases,” Justice Anthony Kennedy wrote in the majority opinion.

The decision pitted the court’s conservatives against its liberals, with President Bush’s two appointees, Chief Justice John Roberts and Justice Samuel Alito, siding with the majority.

Here’s the opinion.

Partial-birth abortions are brutal and rare. Less than ten percent of the more than one million abortions per year are partial-birth abortions. Today’s ruling bans a method, not a right. There are alternatives to partial-birth abortions that are more common which involve dismembering the baby while in the uterus.

But it is the first victory for pro-lifer’s at the federal level and showed that Bush’s Supreme Court nominees will rule in favor of life when presented with the right case. Today’s ruling came in appeals from California and Nebraska after activist judges in California, Nebraska, and New York said Bush’s 2003 ban was unconstitutional. Today’s ruling also shows that stare decisis will not provide as much protection for previous court rulings as abortion-rights advocates hoped, a fact noted by Ruth Bader Ginsburg in her dissent.

Roe v. Wade is now in sight and overturning it seems feasible for pro-life groups now, while NOW, Planned Parenthood, and the DNC will ramp up their fund-raising efforts to preserve the right to murder.

Captian Ed:

It seems very unlikely that the present court will move much beyond this. Anthony Kennedy wrote the majority decision, and he carefully rested his conclusion on the rarity of the procedure and the minimal effect it will have on abortions in the US. Even if the other four justices vote to overturn Roe — and there’s no indication that Alito or Roberts would do so — Kennedy very obviously will not, and neither will the other four on the court’s liberal wing. Only if one of those four retire (or Kennedy) before the end of the Bush term will there possibly be enough votes to overturn Roe. And after this decision, you can bet that both Ginsburg and John Paul Stevens will hang onto their seats until their last breath.

Today’s ruling is a victory for moderation and common sense. It will not presage any movement for this court.


The gist of the decision is that the federal ban is constitutional even thought it doesn’t provide an exception for the health of the mother. The AP has a few excerpts, but omits the juiciest one: where Ruth Bader Ginsburg, writing in dissent, accuses the five men in the majority of sexism.

Anthony Kennedy wrote the majority opinion? If the Chief Justice is in the majority, as Roberts was here, it falls to him to decide who’s responsible for writing the majority opinion. Kennedy probably got the call for two reasons: one, having an author of the Casey opinion put his name on today’s decision lends it a bit of extra authority, and two, since Kennedy is a fencesitter on this issue, Roberts wants to do what little he can to “lock him in” to anti-abortion precedent by making him as personally invested in it as possible.

Wizbang has a link to some crazy feminist blog:

Here’s a feminist whose first comment was “We’re f***ed.” Sure, lady, if you mean that you can’t go to an abortionist when you’re 6+ months pregnant and have your unborn baby almost completely delivered except for his head and have his brains sucked out while he’s still alive because you just don’t feel like being pregnant any longer, then yes, I suppose you’re f***ed. Be sure to check out the comments on this feminist’s blog as well. These wacko women are beside themselves about the fact that they can’t kill their babies in this manner any longer.

La Shawn Barber:

For the ignorant, a so-called partial birth abortion is a procedure in which a woman allows a “doctor” to pull her baby down the birth canal, delivering him partially to avoid murder charges (he’s considered a person in utero only if he’s “wanted,” you see), and inserting a probe or scissors into his skull, killing him. You’ve come a long way, baby!

On the political side, what about Rudy and his latest remarks came while campaigning in Iowa this past weekend:

Our party is going to grow, and we are going to win in 2008 if we are a party characterized by what we’re for, not if we’re a party that’s known for what we’re against.

In case Rudy missed it, what conservatives are “for” is life. Yet he added, “Our party has to get beyond issues like [abortion].” He said in February that he supports a ban on partial-birth abortion, so long as there’s a provision for the health of the mother. Does that mean he doesn’t support this ruling? He may drop a few more points after today. McCain can close the lead even more.

UPDATED – 4/20: Harry Reid’s double standard:

Jonathan Adler makes a good point about Harry Reid’s comments on the recent Supreme Court ruling on partial birth abortion.

Senate Majority Leader Harry Reid (D-NV) was among those who denounced yeste
rday’s Supreme Court ruling upholding the Federal Partial Birth Abortion Act. Commenting on the decision, Reid said “A lot of us wish that Alito weren’t there and O’Connor were there,” indicating his desire that there has been a fifth vote to invalidate the statute, as Justice O’Connor had provided the fifth vote to invalidate Nebraska’s partial-birth abortion ban in Stenberg v. Carhart.

What is curious about Reid’s statement, as NPR and some news outlets have noted, is not Reid’s criticism of Alito — Reid opposed Alito’s confirmation — but the fact that Reid supported, and voted for, the federal statute upheld in yesterday’s decision. Reid was one of 17 Senate Democrats voting in favor of the bill in 2003. Reid also voted in favor of a ban on partial-birth abortion in 1999 (see here) and , as indicated in this “Meet the Press” interview, Reid was one of only two Democratic Senators to vote against a resolution reaffirming Senate support for the holding of Roe v. Wade.

So, despite his repeated support of legislative restrictions on abortion, Reid’s latest comment suggests that he believes the Supreme Court’s decision was regrettable and wrongly decided, and that a law that he supported is unconstitutional. To me, the latter is of greater concern. Call me old fashioned, but I believe that if a member of the Senate believes a law is unconstitutional, he or she should vote against it. While I believe it is permissible to vote in favor of a bill that one believes the Supreme Court will invalidate (a Senator need not agree with the rulings of the Supreme Court), I do not believe that a Senator should vote in favor of a bill the he or she believes should be struck down by the Supreme Court, and it is more than a minor inconsistency when a Senator laments a Supreme Court decision upholding a law which that Senator supported.

Wizbang puts Democrats in their place:

Of course it is nothing new for Senators to speak as if no one will notice their words don’t match their votes. Look at all the Democrat Senators who voted against adoption of the Kyoto Treaty who beat George Bush about the head with his decision not to sign on to it. In fact, some even blamed Bush’s opposition to Kyoto for hurricanes and other acts of God, but you didn’t hear anyone blaming the Senators who voted against it. And look at all the leading Dems who went on record saying Saddam was a threat with WMD. They are now calling Bush a liar for saying the same thing. It appears this is SOP for some.

At least NPR reported Reid’s double standard this time.




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