High Court Upholds Federal Ban on Partial-Birth Abortion!

Court divides 5-4. Justice Kennedy writes for the majority. You can read the opinion here.

The Majority upholds the law against attacks that the law is facially vague and poses an undue burden on a woman's "right to choose" because it is overbroad and does not contains an exception for the health of the women. The Majority says the law is neither vague nor overbroad but rather narrowly targets intact D&Es (i.e., late term partial birth abortions). The state's interest in promoting the dignity of life together with the availability of other late-term abortion procedures removes the need for a health exception.

Justice Thomas, joined by Justice Scalia, concurs and writes to make sure everyone knows he thinks the Court's abortion jurisprudence is unconstitutional.

Justice Ginsburg, joined by Justices Stevens, Souter, and Breyer, dissents. She harps on the law's lack of a health exception.

My take: the decision is a small, but important victory for the unborn, pro-life advocates, and judicial conservatives. The most important part of the decision is the blow at Casey's requirement of a health exception in abortion bans. I also like Kennedy's frequent deference to legislative findings and judgements.

Quotes from the Majority Opinion:

• "The government may use its voice and its regulatory authority to show its profound respect for the life within the woman." 27
• "Respect for human life finds an ultimate expression in the bond of love the mother has for her child. The Act recognizes this reality as well. Whether to have an abortion requires a difficult and painful moral decision. While we find no reliable data to measure the phenomenon, it seems unexceptionable to conclude some women come to regret their choice to abort the infant life they once created and sustained. Severe depression and loss of esteem can follow." 28-29 (citations omitted)
• "The law need not give abortion doctors unfettered choice in the course of their medical practice, nor should it elevate their status above other physicians in the medical community." 33
• "The Court has in the past confirmed the validity of [Congress] drawing boundaries to prevent certain practices that extinguish life and are close to actions that are condemned." 28
• "The Court.s precedents instruct that the Act can survive this facial attack [that some medical evidence shows that an intact D&E is safer than a regular D&E (baby is dismembered inside the women)]. The Court has given state and federal legislatures wide discretion to pass legislation in areas where there is medical and scientific uncertainty." 33