Supreme Court Upholds Federal Partial Birth Abortion Ban

Dividing 5-4, the Supreme Court on Wednesday gave a sweeping -- and only barely qualified -- victory to the federal government and to other opponents of abortion, upholding the 2003 law that banned what are often called "partial-birth abortions." Justice Anthony M. Kennedy wrote for the majority in the first-ever decision by the Court to uphold a total ban on a specific abortion procedure -- prompting the dissenters to argue that the Court was walking away from the defense of abortion rights that it had made since the original Roe v. Wade decision in 1973. Roe v. Wade was not overturned, as some filings before the Court had urged.

The Court said that it was upholding the law as written -- that is, its facial language. It said that the lawsuits challenging the law should not have been allowed in court "in the first instance." The proper way to make a challenge, if an abortion ban is claimed to harm a woman's right to abortion, is through as as-applied claim, Kennedy wrote. His opinion said that courts could consider such claims "in discrete and well-defined instances" where "a condition has or is likely to occur in which the procedure prohibited by the Act must be used."

The full decision can be found here (Gonzales v. Carhart, No 05-380, 4/18/2007).

It's a 73 page decision, Kennedy wrote the majority opinion. Thomas and Scalia wrote a concurring opinion. Ginsberg, Stevens, Breyer and Souter issued the dissenting opinion.

I expect the abortion rights folks to get riled up over the fact that the court upheld the ban, which is the first time the Court has actually banned a specific procedure. Other Court cases on abortion rights have dealt with time periods and when it was appropriate to consider restrictions on abortion.

I'm not sure that this is as significant as the abortion rights folks would like people to believe. Just how many of these procedures are actually done in the country? It's a late term procedure, and I've seen it reported that only about 4,000 to 5,000 procedures are done annually, though there is a range of opinion on the veracity of those numbers.