April 18, 2007 / 2:26 PM / 12 years ago

UPDATE 3-US top court upholds law banning some abortions

(Adds details of dissent, ruling, reaction)

By James Vicini

WASHINGTON, April 18 (Reuters) - A closely divided U.S. Supreme Court on Wednesday upheld for the first time a nationwide ban on a specific abortion procedure, a ruling critics denounced as undermining 30 years of precedent protecting women’s health.

By a 5-4 vote, the high court ruled that the Partial-Birth Abortion Ban Act that President George W. Bush signed into law in 2003 after its approval by the Republican-led U.S. Congress does not violate a woman’s constitutional right to an abortion.

The ruling could open the door to further abortion restrictions and it came in the first full term of Bush’s two Supreme Court appointees, signaling a possible new direction on a divisive social issue that could continue long after Bush leaves office.

The decision by the conservative majority that included both of Bush’s appointees marked the first federal ban on an abortion procedure to be upheld since the court’s landmark Roe v. Wade ruling in 1973 that women have a basic constitutional right to abortion.

The majority opinion written by Justice Anthony Kennedy rejected the argument the law must be struck down because it imposed an undue burden on a woman’s right to abortion, that it was too vague or broad and it failed to provide an exception for abortions to protect the health of a pregnant woman.

“The government has a legitimate and substantial interest in preserving and promoting fetal life,” Kennedy wrote in the 39-page opinion. He said the law would reduce the number of late-term abortions.

The court’s four liberals — Justices Ruth Bader Ginsburg, John Paul Stevens, David Souter and Stephen Breyer — dissented.

Ginsburg called the decision alarming and took the rare step of reading parts of her dissent from the bench.

“The court’s opinion tolerates, indeed applauds, federal intervention to ban nationwide a procedure found necessary and proper in certain cases by the American College of Obstetricians and Gynecologists,” she said.

“For the first time since Roe, the court blesses a prohibition with no exception protecting a woman’s health,” Ginsburg said.

The upheld law makes it a crime for a doctor to perform an abortion when the “entire fetal head” or “any part of the fetal trunk past the navel” is outside the woman’s uterus.

Some doctors have described the surgical procedure, which typically takes place after the first three months of pregnancy, as the safest method because it reduces the risk of bleeding, infection and other health consequences. It is known medically as intact dilation and extraction.


The ruling was widely viewed as the most important of the court’s 2006-07 term. It had been closely watched as tests of whether Bush’s two appointees, Chief Justice John Roberts and Justice Samuel Alito, would restrict abortion rights. Both voted to uphold the law.

Abortion rights advocates called the decision a stunning reversal that effectively overturned 30 years of precedent, while Bush and other supporters of the law hailed the ruling.

“Today’s decision affirms that the Constitution does not stand in the way of the people’s representatives enacting laws reflecting the compassion and humanity of America,” Bush said.

Jay Sekulow of the American Center for Law and Justice called the ruling “a monumental victory.”

Opponents of the law said the ruling cleared the way for state and federal legislatures to adopt additional bans on abortions after the first three months of pregnancy.

“It took just a year for this new court to overturn three decades of established law,” Nancy Northup of the Center for Reproductive Rights said.

“This ruling flies in the face of 30 years of Supreme Court precedent and the best interest of women’s health and safety,” said Eve Gartner of Planned Parenthood Federation of America.

The ruling drew immediate reaction from presidential candidates. Abortion could be an important issue in next year’s elections.

“This hard right turn is a stark reminder of why Democrats cannot afford to lose the 2008 election. Too much is at stake — starting with, as the court made all too clear today, a woman’s right to choose,” Democrat John Edwards said.

Republican Rudolph Giuliani said, “The Supreme Court reached the correct conclusion in upholding the congressional ban on partial birth abortion. I agree with it.”

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