High Court Upholds Partial Birth Abortion Act

The Supreme Court delivers a decision abortion opponents had been awaiting. In a five-to-four ruling, the court upheld the Partial Birth Abortion Ban Act of 2003. The law banned a controversial abortion procedure.

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STEVE INSKEEP, host:

It's MORNING EDITION from NPR News. I'm Steve Inskeep.

RENEE MONTAGNE, host:

And I'm Renee Montagne.

The Supreme Court this morning has delivered the decision that abortion opponents have been looking for. In a 5-4 ruling, the court has upheld the Partial Birth Abortion Ban Act of 2003, a law that banned a controversial abortion procedure nationwide.

Joining us from the Supreme Court is NPR legal affairs correspondent Nina Totenberg. Good morning.

NINA TOTENBERG: Good morning.

MONTAGNE: Remind us, Nina, how this case came to court and what were the key questions that it raised.

TOTENBERG: Seven years ago, the court first dealt with this issue in a state case from Nebraska, where the state had banned this procedure known as a partial birth abortion, except to save the life of the mother. And the court invalidated that statute because there was no provision for the procedure to be used when it was the safest one for the mother, for health exception.

Justice Sandra Day O'Connor wrote a decision that was essentially a roadmap for legislators to use to write a statute that would be constitutional. Congress then passed a new law that applied to all states nationwide. It didn't follow the O'Connor roadmap. It basically reenacted the Nebraska ban nationwide. But it had a finding, a congressional finding, that so-called partial birth abortions are never medically necessary. And that ban is what was the issue today in the Supreme Court.

The court upheld the federal ban today with a new roster of justices. Justice O'Connor gone. The new chief justice, John Roberts, and Justice Alito now having a very different position, and now this means that every state, even those that permit this procedure, it will now be illegal in those states.

MONTAGNE: And what was the reasoning behind this - the majority in this decision?

TOTENBERG: Justice Anthony Kennedy wrote the court's 5-4 decision. He said that the state has an interest in promoting human life and that this - banning this procedure may discourage some women from having an abortion. But this statute had more precise language than the Nebraska statute, that it requires intent by the doctor at the outset to perform an outlawed procedure and that it doesn't apply unless doctors do set out to do a banned procedure. And he said it better defines what the procedure is with anatomical landmarks of when a so-called partial birth abortion procedure has been undertaken. He said it's not an undue burden on women because there are alternative procedures. And if there are times when this is medically necessary, abortion supporters will have to go to court and prove that in individual cases.

MONTAGNE: And the four dissenters, what did they have to say?

TOTENBERG: The four dissenters, led by Justice Ruth Bader Ginsberg, and she spoke in a very passionate dissent from the bench today, she said in an alarming decision the court's opinion tolerates, indeed applauds, federal intervention to ban a nationwide procedure found necessary and proper in certain cases by the American College of Obstetricians and Gynecologists. That means, she said, that for the first time since Roe vs. Wade, the court blesses a prohibition with no exception protecting a woman's health.

The court asserts that its ruling furthers the government interest in promoting fetal life, she said, but the act scarcely furthers that interest, for it targets only a method of abortion. And then she went on to say at the end of her decision that this was clearly a decision by a new court to disregard the idea that precedent should carry the day.

And at the end she said, and here I'm quoting from her: Although today's opinion does not go so far as to discard Roe vs. Wade, differently composed than it was when we last considered a restrictive abortion regulation, it is hardly faithful to the invocations of the rule of law and the principles of stare decisis. It cannot be understood as anything other than an effort to chip away at a right declared again and again by this court, and with increasing comprehension of its centrality to women's lives, meaning it's trying to chip away at Roe vs. Wade, in the view of the dissenters.

MONTAGNE: Nina, thanks very much.

TOTENBERG: Thank you.

MONTAGNE: NPR legal affairs correspondent Nina Totenberg on the Supreme Court ruling today upholding the partial birth abortion ban act of 2003.

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