High Court Ruling a Blow to Abortion Rights

The U.S. Supreme Court upholds a federal ban on "intact dilation and extraction," a procedure known to critics as partial-birth abortion. Wednesday's ruling is seen as a significant blow to abortion rights.

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The U.S. Supreme Court has upheld a federal law banning what the law calls partial-birth abortions. Yesterday's decision has huge ramifications for the future of abortion rights. The courts 5-4 decision is expected to spur many more attempts at the state level to restrict abortions.

NPR legal affairs correspondent Nina Totenberg reports.

NINA TOTENBERG: The court's ruling represents a turnaround from a decision just seven years ago, when the court struck down a similar state law banning so-called partial birth abortions. That decision said the law interfered with the woman's constitutional right to have an abortion because there was no health exception to allow the procedure if it was the safest one for the woman.

Congress reacted to the decision by passing a federal law that declared there never is a medical necessity for the procedure and banning the practice nationwide.

Yesterday the Supreme Court upheld the ban even while acknowledging that Congress was wrong in many of its findings of fact on issue. Writing for the five-man majority, Justice Anthony Kennedy said the ban does not pose an undue burden on a woman's right to abortion because other methods are available. Kennedy conceded that Congress was wrong when it said the medical consensus is that there is no need ever for this procedure. But he said Congress still has a legitimate interest in promoting fetal life and has a moral right to ban a practice it deems to be too close to infanticide.

In a rare oral dissent from the bench, Justice Ruth Bader Ginsburg called the decision alarming. For the first time in more than 30 years, she said, the court blesses a prohibition with no exception protecting a woman's health. In candor, she said the court's decision rendered by a majority with two new justices cannot be understood as anything other than an effort to chip away at the right declared by this court in Roe v. Wade 33 years ago, the right of a woman to determine her own reproductive destiny.

Pro and anti-abortion forces agree that the ruling represents an earthquake in abortion law. Planned Parenthood's Eve Gardner:

Ms. EVE GARTNER (Attorney, Planned Parenthood): This is a true seismic shift in the way that the court is viewing for restrictions on women's right to choose. This is a very different landscape today than it was yesterday, and women in this country will suffer as a result.

TOTENBERG: Jay Sekulow, 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: Both sides also agreed there would now be a big push at the state level to pass many more restrictions on abortion. Planned Parenthood President Cecile Richards.

Ms. CECILE RICHARDS (President, Planned Parenthood): The breadth of this abortion ban opens the floodgates for politicians to introduce more state and federal laws that severely limit access to safe abortion care.

TOTENBERG: All of the leading medical organizations in the field weighed in at the Supreme Court to strike down this law. Dr. Fred Frigoletto, a past president of the American College of Obstetricians and Gynecologists, decried the court's decision as when that would lead to more restrictions, intimidation of doctors, and unsafe abortions for women. But he said this particular ban would likely not result in any great harm.

Dr. FRED FRIGOLETTO (Former President, American College of Obstetricians and Gynecologists): From the point of view of the patient, we are not going to be significantly encumbered because of the other alternatives.

TOTENBERG: Abortion opponent Jay Sekulow, however, said yesterday's decision would land considerable support to other new rules and regulations on abortion.

Mr. SEKULOW: The language that Justice Kennedy uses is what I think is so significant here. The language itself will prove to be the pivotal aspect to this.

TOTENBERG: Indeed the decision, quite sweeping in its language, appears to contradict previous abortion rulings in a variety of ways. For the first time a court majority is declaring that Congress can legislate in this area for moral reasons despite substantial medical opinion that the law would endanger women's health.

For the first time the court has said that a large fraction of women must be harmed by a regulation in order for it to be struck down. Fifteen years ago, in reaffirming Roe, the court said exactly the opposite, that if even a small fraction were harmed, that was enough. And for the first time the court has said that challenges to abortion regulations must be made on a case-by-case basis, a rule never used before because of the time limitations of terminating a pregnancy and the urgencies of medical decision-making. In short, for pro-life forces, the decision is a stunning victory, and for pro-choice forces, a shattering defeat.

Nina Totenberg, NPR News, Washington.

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