High Court Upholds Ban On Some Abortions

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

It's the first federal ban on any kind of abortion since the Court established the right to an abortion in Roe vs. Wade, says CBS News correspondent Wyatt Andrews.

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 U.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. He said Congress was justified in finding the procedure "similar to the killing of a newborn infant."

The ruling is huge, because the ban is now the first abortion restriction ever approved, with no exception for the health of the mother, said Andrews.

"No matter which side you are on, this is a landmark ruling in the history of abortion law in this country," CBS News legal analyst Andrew Cohen said. "The court has endorsed a federal ban that criminalizes doctors who perform this procedure even when they believe the health of the woman involved is at risk. And the ruling, I think, opens the door to future restrictions on abortion rights as well."

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.

Justices Clarence Thomas and Antonin Scalia also were in the majority.

"This ruling is all about Justice Samuel Alito," Cohen said. "He provided the fifth vote to uphold the federal law banning the practice and he is the reason this case came out differently than its predecessor case did. I don't think anyone on or off the court who has followed this closely believes that Sandra Day O'Connor would have okayed Congress' action here."

It was the first time the court banned a specific procedure in a case over how — not whether — to perform an abortion.

President Bush hailed the ruling, saying it affirms the progress his administration has made to defend the "sanctity of life."

"I am pleased that the Supreme Court has upheld a law that prohibits the abhorrent procedure of partial birth abortion," he said. "Today's decision affirms that the Constitution does not stand in the way of the people's representatives enacting laws reflecting the compassion and humanity of America."

Supporters of abortion rights were outraged, reports CBS News correspondent Barry Bagnato.

Even though the number of such banned abortions is small and mostly confined to the third trimester, those who sought to have the law overturned say it can now apply to thousands of second trimester abortions, when the woman's doctor thinks partial delivery is the safest course.

"This decision not only threatens women's health and the practice of medicine, and the privacy of the doctor-patient relationship, it threatens the fundamental dignity of women," said Kate Michelman, former head of NARAL Pro-Choice America.

She predicted that if President Bush gets to appoint one more justice on the court, Roe vs. Wade will be overturned.

Dr. LeRoy H. Carhart, who was plaintiff in Stenberg v. Carhart in 2000 when the Court struck down a Nebraska law banning such abortions, rued today's ruling. "When the Supreme Court considered this issue seven years ago, they agreed that women's health was a paramount concern and doctors, not politicians, were in the best position to decide what procedures were safest. What a difference seven years, a new President, and two new justices, can make."

But opponents of abortion rights say the court did the right thing.

"Certainly we saw with that horrible tragedy at Virginia Tech how tenuous life is and how valuable it is," Ann Scheidler of the Pro-Life Action League said. "Every child is important whether that child is a college student or that child is in the womb."

Abortion rights groups have said the specific procedure sometimes is the safest for a woman. They also said that such a ruling could threaten most abortions after 12 weeks of pregnancy, although government lawyers and others who favor the ban said there are alternate, more widely used procedures that remain legal.

Opponents of the ban also argue the law could apply to women like Mary Vargas, whose late-term fetus suffered kidney failure in the womb, and was fated to die. Her choice, she says, was between giving birth — where the child would suffer and die — or the kind of abortion that is now illegal.
"It's wrong for this law to exist at all," Vargas said. "Nobody could have agonized over the decision the way my husband and I did."

The outcome of today's federal ruling is likely to spur efforts at the state level to place more restrictions on abortions.

More than 1 million abortions are performed in the United States each year, according to recent statistics. Nearly 90 percent of those occur in the first 12 weeks of pregnancy, and are not affected by Wednesday's ruling.

Six federal courts have said the law that was in focus Wednesday is an impermissible restriction on a woman's constitutional right to an abortion.

The law bans a method of ending a pregnancy, rather than limiting when an abortion can be performed.

In a stinging dissent, Justice Ruth Bader Ginsburg called the ruling "alarming" and "irrational" and blasted the all-male majority decision for not respecting women's choices.
"This way of thinking reflects ancient notions about women's place in the family" she wrote.

Ginsburg said the ruling "refuses to take ... seriously" previous Supreme Court decisions on abortion, and that the latest decision "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."

She was joined by Justices Stephen Breyer, David Souter and John Paul Stevens.

The procedure at issue involves partially removing the fetus intact from a woman's uterus, then crushing or cutting its skull to complete the abortion.

Abortion opponents say the law will not reduce the number of abortions performed because an alternate method — dismembering the fetus in the uterus — is available and, indeed, much more common.

In 2000, the court with key differences in its membership struck down a state ban on partial-birth abortions. Writing for a 5-4 majority, Justice Breyer said the law imposed an undue burden on a woman's right to make an abortion decision.

The Republican-controlled Congress responded in 2003 by passing a federal law that asserted the procedure is gruesome, inhumane and never medically necessary to preserve a woman's health. That statement was designed to overcome the health exception to restrictions the court has demanded in abortion cases.

But federal judges in the states of California, Nebraska and New York said the law was unconstitutional, and three appellate courts agreed. The Supreme Court accepted appeals from California and Nebraska.

Kennedy's dissent in 2000 was so strong that few court watchers expected him to take a different view of the current case.