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Decision a limited win, pro-life lawyers say

WASHINGTON (BP)–The U.S. Supreme Court’s support for a federal ban on partial-birth abortion marks a limited, though important, victory in the campaign to provide legal protection for unborn children, pro-life lawyers said after the ruling’s release April 18.

In a 5-4 decision, the justices reversed two federal appeals courts and affirmed the Partial-birth Abortion Ban Act, making it the first judicially vindicated restriction on a specific procedure since the high court legalized abortion in the 1973 Roe v. Wade opinion. The 2003 law prohibits an abortion technique that involves the killing of a nearly totally delivered baby normally in at least the fifth month of pregnancy.

The decision, written by Associate Justice Anthony Kennedy, appears to have no negative effect on Roe or even the 1992 Planned Parenthood v. Casey ruling, which reaffirmed the 1973 opinion while upholding some state restrictions on abortion.

In fact, Paul Benjamin Linton, special counsel for the Thomas More Society, said in an online commentary, “It is doubtful that the Court’s decision presages a retreat from either [Planned Parenthood] or [Roe], as some of the shriller reactions to the decision (including Justice Ginsburg’s dissent) suggest.”

Lawyer Wesley Smith, a bioethics specialist, wrote on the bioethics.com weblog the new opinion shows Casey, instead of Roe, “is now unquestionably the reigning case” in cases involving abortion.

Given the justices refused to refute Roe or Casey, the latest ruling demonstrates a “judicial restraint” that has been needed on the high court and that will aid legislative efforts to restrict abortion, pro-life lawyers said. The opinion signals the justices will not reject abortion limitations on face value, some said.

“The Roberts Court has taken a positive, modest step in restoring a sense of reason and principle to constitutional adjudication on abortion,” said Wendy Long, legal counsel for the Judicial Confirmation Network and former Supreme Court law clerk, on National Review Online. “Liberal pro-abortion extremists no longer have a blank check to railroad over the will of democratic majorities” of Americans.

Jordan Lorence, senior counsel for the Alliance Defense Fund, said in a written release the ruling “allows legislators to deal with the complexities of the abortion situation rather than having courts impose rigid rules that block sensitive and moral-based solutions to the abortion controversy.”

The opinion is part of a “new outlook” by the justices, said Mailee Smith, staff counsel for American United for life. “The Court sent the message that it will not strike down abortion regulations simply because they are abortion regulations,” Smith said in a written statement. Courts no longer can overturn laws restricting abortion “based merely on abortion proponents’ speculative claims,” Smith said.

The decision means limitations on “later term abortions will be permitted, if they are narrowly and precisely written, using medical rather than [the] polemic/advocacy lexicon,” Wesley Smith said.

The ruling could encourage not only efforts to approve restrictions in Congress and state legislatures, but it could impact cases before lower courts. It might sway consideration of partial-birth bans in Missouri, Virginia and Utah; a South Dakota law requiring doctors to inform abortion-minded women the procedure ends a human life; and an Ohio prohibition on prescribing the abortion drug RU 486 after the seventh week of pregnancy, according to the Associated Press.

Wesley Smith suggested the decision may reach beyond abortion in its impact. “The intrinsic value of human life has been boosted,” he said. “Abortion is unique in this regard because the fundamental issue of the woman’s personal autonomy is seen as a conflicting value to protecting embryonic/fetal life. Outside of the abortion context, however, it seems to me that this case could be construed as a strong affirmation of the State’s interest in protecting fetal, and perhaps even, embryonic human life.”

Mark Levin, president of the Landmark Legal Foundation, offered a more skeptical view of the ruling than his fellow pro-life lawyers. Saying he does not “understand what all the fuss is about,” Levin said in his weblog on National Review Online that Kennedy solicited a particular type of challenge to partial-birth abortion bans. “In short, [Kennedy] says the federal statute, which excepts partial-birth abortion in cases that threaten the life of the mother (thereby narrowing the health exception), is consistent with past court rulings, but he is prepared to reverse course in a future case involving non-life threatening health exceptions,” he wrote.

In his opinion, Kennedy said the federal ban is not vague and does not impose “an undue burden on a woman’s right to abortion” based on it being either overly broad or lacking an exception for the mother’s health.

Chief Justice John Roberts and Associate Justices Antonin Scalia, Clarence Thomas and Samuel Alito joined Kennedy in the majority.

Associate Justice Ruth Bader Ginsburg wrote the dissenting opinion, joined by Associate Justices John Paul Stevens, David Souter and Stephen Breyer.

The justices’ decision came in two cases, Gonzales v. Carhart, an appeal from the Eighth Circuit Court of Appeals in which the law was invalidated based on its lack of a health exception, and Gonzales v. Planned Parenthood, out of the Ninth Circuit, which also said the ban imposes an undue burden on women and is too vague.

The Partial-birth Abortion Ban Act bars a second- and third-trimester procedure in which, as typically used, an intact baby is delivered feet first until only the head is left in the birth canal. The doctor pierces the base of the infant’s skull with surgical scissors before inserting a catheter into the opening and suctioning out the brain, killing the baby. The technique provides for easier removal of the baby’s head. The law allows an exception if the mother’s life is threatened.
Compiled by Tom Strode.

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