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A step backward on abortion rights

By A TIMES EDITORIAL
Published April 20, 2007

The U.S. Supreme Court's 5-4 decision upholding the federal ban on so-called partial-birth abortions will have little immediate impact. There are alternatives to the "intact dilation and extraction" procedure outlawed by Congress, and the procedure is used in a relatively small number of abortions. Yet it is concerning for what it signals about this court's direction. Neither Congress nor the court should be interfering with medical decisions best made by a woman and her doctor.

The court's opinion is a significant departure from more than 30 years of abortion-related jurisprudence. It ignores legal precedent and concerns for the health of the mother. It sets the stage for state legislatures to test the edges of this new direction by approving further restrictions on a constitutional right to an abortion that looks less firm than it did a week ago.

The Supreme Court struck down a similar state statute banning "partial-birth abortion" just seven years ago. In its 5-4 ruling in 2000, the court found a Nebraska statute unconstitutional largely because it did not provide an exception to safeguard women's health. With two new members and the departure of Justice Sandra Day O'Connor, the court has reached the opposite conclusion on the federal law. The nods that Chief Justice John Roberts and Justice Samuel Alito made during their Senate confirmation hearings toward respecting court precedent apparently have exceptions.

The court's majority ignored significant evidence that intact D & E is, for some women with certain medical conditions, the safest procedure in some cases. The field's experts, the American College of Obstetricians and Gynecologists, said that intact D & E is at times necessary to preserve a pregnant woman's health (the law permits use of the procedure only to save the life of the woman). Lower courts reached similar conclusions. But Justice Anthony Kennedy, writing for the majority, disregarded all of this and found that there is "medical uncertainty" over whether significant health risks would flow from the ban. On that basis, the court granted lawmakers the power to enact one.

If there is a reasonable chance that a woman's health might be put at risk, the court should have recognized long-standing precedent and overturned the federal law. The majority opinion says women can still challenge the law individually, as it applies to their own health needs. But as Justice Ruth Bader Ginsburg said in her powerful dissent, a piecemeal litigation approach is "gravely mistaken" and will undoubtedly compromise women's health.

The majority's ruling suggests that "moral concerns" can be used as a basis for regulating certain abortion procedures. But Ginsburg aptly notes that such concerns, if spun out, could easily "yield prohibitions on any abortion."

With its change of direction on the abortion issue, this court has affirmed a ban on a particular method of abortion for the first time. The most disturbing aspect is not what it means for the present but what it may signal for the future.

[Last modified April 20, 2007, 01:14:50]