MADELEINE BRAND, host:
From the studios of NPR West, this is DAY TO DAY. I'm Madeleine Brand.
ALEX CHADWICK, host:
I'm Alex Chadwick. Coming up, a brutal day of violence again in Baghdad, and new details about the troubled background of the Virginia Tech gunman.
BRAND: First though, a big victory for abortion opponents at the Supreme Court today. The court upheld a federal law banning a certain late-term abortion procedure; it's known by abortion opponents as partial-birth abortion.
Joining us now is Dahlia Lithwick. She's court watcher for DAY TO DAY and for the online magazine Slate. And Dahlia, this was a 5-4 decision, the first time the court has upheld a federal law banning a specific abortion procedure since, well, since the 1973 Roe decision. So this is pretty significant, it sounds.
Ms. DAHLIA LITHWICK: Well, it sort of depends on who you ask. The majority said that, actually, it's not that significant. It's a very narrow ruling. It affects only a small number of procedures. It's sort of the states have the prerogative to do this. And the majority says we're keeping the precedent intact and we're even leaving the door open for women who feel later that they have, quote, "discrete and well-defined instances" of problems with the ban to come in and contest it. So the majority says it's not that big a deal. The dissent, and Justice Ruth Bader Ginsburg was so upset she kind of took the unprecedented step of reading from the bench today - the dissent says this decision is, quote, "alarming." She said it, quote, "refuses to take seriously the precedent that comes before." And essentially the dissent says this is an enormous big deal because it essentially eviscerates prior abortion rulings while sort of pretending to adhere to them.
BRAND: Okay. Well, let's go back a little bit in time. And this was actually a federal law that Congress enacted some four years ago and was never actually put into place because there were all these objections, right, because it didn't have an exception for the mother's health?
Ms. LITHWICK: That's right. It was enjoined right from the starting gate by the federal courts. And, in fact, Madeleine, six federal courts relying on the court's precedent had found that the ban was unconstitutional. The reason for that is because the court heard on almost exactly the same ban, a case involving a ban that was substantially similar in a 2000 decision called Stenberg v. Carhart. And the court in that case said, no, this ban is unconstitutional. So courts relied on that to say this ban is also unconstitutional. That's what so dramatic today. What's happened between 2000 and 2007, you ask, well, maybe the ban's changed, or maybe the composition of the court has changed.
BRAND: Who wrote today's decision?
Ms. LITHWICK: Today's 5-4 decision was written by Justice Anthony Kennedy, and he essentially said, look, this is different from the 2000 situation and there's really nothing wrong with this law on its face. He said courts can still, in the future, consider individual appeals from individual women, bringing what's known as-applied challenges, but that the law cannot be struck down as unconstitutional on its face. And he went even further and said, look, in the face of medical disagreement and medical uncertainty about whether this imperils the health of the mother, it's all right for legislators to act widely and broadly.
BRAND: So is it fair to say that the absence of Sandra Day O'Connor changed the outcome of today's decision?
Ms. LITHWICK: I think it's not only fair, I think it's probably the only conclusion you can really draw. And certainly, you know, I think it suggests that what the court is willing to do - maybe not today, they say they're holding Roe and its progeny intact - but I think it does suggest a willingness of this new court with Alito instead of O'Connor to really revisit those old formerly sacrosanct abortion cases and rethink them.
BRAND: So Roe v. Wade in danger?
Ms. LITHWICK: Well, I think it's not in danger today, but it's been hollowed out today.
BRAND: Dahlia Lithwick of Slate.com. Thank you for joining us.
Ms. LITHWICK: My pleasure, Madeleine.
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