Abortion: Battles on Three Fronts
April 30, 2007 issue - The Supreme Court's decision to uphold a federal ban on "partial birth" abortion last week set off skirmishes on three battlefields: in politics, doctor's offices and the high court itself. With Samuel Alito now in Sandra Day O'Connor's old seat, conservatives finally had five votes to restrict abortion. Justice Anthony Kennedy—often derided by conservatives as a closet liberal—wrote the vigorous majority opinion upholding the law.
Kennedy has expressed nuanced views on abortion in the past, upholding Roe but disagreeing with a ruling that struck down a Nebraska "partial birth" ban. In last week's opinion he didn't reject the landmark abortion-rights decision, but his language pleased pro-lifers. "Kennedy is very much speaking in the code language of the anti-abortion activists," says David Garrow, a legal historian at the University of Cambridge. The justice used "kill" or "killing" 11 times to refer to abortion and argued that "some women come to regret their choice to abort the infant life they once created and sustained." He also delved into the grisliest medical details of the procedure, quoting at length from a onetime clinic nurse turned pro-lifer. In a sharply worded dissent joined by the court's three other liberals, Justice Ruth Bader Ginsburg called Kennedy's opinion "alarming" and chided him for a paternalistic outlook that demeans women. That wasn't the only cross-court salvo. In a brief but pointed opinion agreeing with Kennedy, Justice Clarence Thomas (joined by Antonin Scalia) chimed in that Roe itself "has no basis in the Constitution." Roberts and Alito didn't sign on; whether they agree is still an open question.
The ruling marked the first time the court has restricted a particular abortion method—and the first time the justices said a law did not need an exception to protect a woman's health. But the ban itself may have little practical effect. The procedure, known medically as "intact dilation and evacuation" is performed in only a tiny fraction of abortion cases. And Kennedy's opinion was actually narrowly crafted. If a doctor does not intend to perform an intact D&E, he cannot be prosecuted. Doctors can still perform the banned abortions if they first administer a lethal injection to the fetus. There's also the question of exactly how prosecutors will enforce the law. Will they need a mole in the operating room?
Political fallout from the decision could be much greater. The timing makes abortion and the court itself ripe issues for the '08 campaign trail. In the meantime, abortion-rights advocates fear new attempts to limit abortion. With Democrats in control of Congress, a federal crackdown is unlikely. Last week some Dems sought to fight back by introducing the Freedom of Choice Act, which they said would "codify Roe" and override the "partial birth" ban. But any Democratic effort to restore federal abortion funding cut during years of GOP rule would cause gridlock when the budget process starts next month.
More action is likely in the states, where the Center for Reproductive Rights is tracking more than 700 bills this year alone aimed at restricting abortion. Most are incremental and involve tougher informed-consent laws. Despite last week's victory, pro-life strategists remain wary of tackling Roe head on. "I can't believe there'd be five votes [on the high court] for that," says Clarke Forsythe, president of Americans United for Life. But a handful of other test cases over smaller restrictions are already winding their way through the lower courts. Then Kennedy & Co. can weigh in once again.
—Debra Rosenberg
Kennedy has expressed nuanced views on abortion in the past, upholding Roe but disagreeing with a ruling that struck down a Nebraska "partial birth" ban. In last week's opinion he didn't reject the landmark abortion-rights decision, but his language pleased pro-lifers. "Kennedy is very much speaking in the code language of the anti-abortion activists," says David Garrow, a legal historian at the University of Cambridge. The justice used "kill" or "killing" 11 times to refer to abortion and argued that "some women come to regret their choice to abort the infant life they once created and sustained." He also delved into the grisliest medical details of the procedure, quoting at length from a onetime clinic nurse turned pro-lifer. In a sharply worded dissent joined by the court's three other liberals, Justice Ruth Bader Ginsburg called Kennedy's opinion "alarming" and chided him for a paternalistic outlook that demeans women. That wasn't the only cross-court salvo. In a brief but pointed opinion agreeing with Kennedy, Justice Clarence Thomas (joined by Antonin Scalia) chimed in that Roe itself "has no basis in the Constitution." Roberts and Alito didn't sign on; whether they agree is still an open question.
The ruling marked the first time the court has restricted a particular abortion method—and the first time the justices said a law did not need an exception to protect a woman's health. But the ban itself may have little practical effect. The procedure, known medically as "intact dilation and evacuation" is performed in only a tiny fraction of abortion cases. And Kennedy's opinion was actually narrowly crafted. If a doctor does not intend to perform an intact D&E, he cannot be prosecuted. Doctors can still perform the banned abortions if they first administer a lethal injection to the fetus. There's also the question of exactly how prosecutors will enforce the law. Will they need a mole in the operating room?
Political fallout from the decision could be much greater. The timing makes abortion and the court itself ripe issues for the '08 campaign trail. In the meantime, abortion-rights advocates fear new attempts to limit abortion. With Democrats in control of Congress, a federal crackdown is unlikely. Last week some Dems sought to fight back by introducing the Freedom of Choice Act, which they said would "codify Roe" and override the "partial birth" ban. But any Democratic effort to restore federal abortion funding cut during years of GOP rule would cause gridlock when the budget process starts next month.
More action is likely in the states, where the Center for Reproductive Rights is tracking more than 700 bills this year alone aimed at restricting abortion. Most are incremental and involve tougher informed-consent laws. Despite last week's victory, pro-life strategists remain wary of tackling Roe head on. "I can't believe there'd be five votes [on the high court] for that," says Clarke Forsythe, president of Americans United for Life. But a handful of other test cases over smaller restrictions are already winding their way through the lower courts. Then Kennedy & Co. can weigh in once again.
—Debra Rosenberg
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