LINDA WERTHEIMER, host:
This week, a newly constituted U.S. Supreme Court with two new Bush appointees changed the legal landscape on abortion. By a 5-4 vote, the court for the first time upheld a regulation banning a particular abortion procedure - the procedure that abortion opponents call partial birth. And in so doing, the court opened the door to a wide variety of other abortion restrictions.
As NPR's legal affairs correspondent Nina Totenberg reports, the majority and dissenting opinions represent conflicting notions of those whose interest count most in American society.
NINA TOTENBERG: For Justice Anthony Kennedy taking up a pen for the majority, this was a case about the unborn and the state's interest in promoting fetal life. For Justice Ruth Bader Ginsberg in dissent, this was a case about a woman's right to control her own reproductive destiny.
The government said Justice Kennedy may use its voice and its regulatory authority to show its profound respect for the life within a woman. Countering that, Justice Ginsberg said, the court, for the first time, tolerates, even applauds, a law that threatens the health of some women.
Ginsberg, a leading pioneer of women's rights in the 1960s and '70s, observed there was a time not so long ago when women were pigeonholed into the role of homemaker and denied full and independent legal status under the Constitution.
Fifteen years ago, in reaffirming Roe v. Wade, she noted: This court acknowledged that the ability of women to recognize their full potential is intimately connected to their ability to control their reproductive lives. Under restrictions on abortion procedures, added Ginsberg, limit a woman's autonomy, her ability to determine her life's course, and to enjoy equal citizenship.
Not so, said Justice Kennedy. Fifteen years ago, when the court reaffirmed Roe v. Wade, the decisive three justices - and he was one of them - did not intend to create a scheme that would be tantamount to allowing a doctor to choose the procedure he or she might prefer. In this case, Kennedy said, Congress was well within its rights to ban a procedure that has a disturbing similarity to the killing of a newborn infant. Although Kennedy conceded that Congress had been wrong in many of its findings about the procedure, he nonetheless said that Congress had legitimate moral and ethical concerns that justified the ban, namely drawing a bright line that clearly distinguishes between abortion and infanticide.
Justice Ginsberg responded by saying that the so-called partial birth ban saves not a single fetus from destruction. Instead, she said, the law outlaws a procedure that the American College of Obstetricians and Gynecologists and other leading medical organizations say is the safest one for some women.
The court majority admits, she noted, that its opinions hinged on moral concerns. But those moral concerns are untethered to any government interest in preserving life. And to make her point, she quoted Justice Kennedy's opinion in the 2003 gay rights case: "Our obligation is to define the liberty of all, not to enforce our all moral code."
Undeterred, Justice Kennedy had this to say: Respect for human life finds an ultimate expression in the bond of love the mother has for her child. The partial birth ban recognizes this as well. And, said Kennedy, while we find no reliable data to measure the phenomenon, it seems unexceptional to conclude some women come to regret their choice to abort the infant they created. Because patients often do not want to know the details of the procedures they will undergo, he said, it is unnecessary inference that this ban will encourage some women to carry their pregnancies to full term.
Ginsberg called this passage nothing more than a shibboleth, for which the Court admits it has no reliable evidence. Even if it is true that women would be discouraged from some abortions if they knew the details, she said, the solution the Court approves is not to inform them of the different procedures and their attendant risks but to cut off what may be the safest abortion method for them.
To that, Kennedy replied: When alternative procedures are available to the woman, even ones that are marginally riskier, that's enough to protect her rights.
Nina Totenberg, NPR News, Washington.
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