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Total Victory on Partial-Birth Abortion

Prolife leaders applaud Supreme Court's first regulation on an abortion procedure.

Prolife leaders celebrated Wednesday after the Supreme Court upheld the 2003 federal law banning partial-birth abortions. The law, which prohibits doctors from using the dilation and extraction procedure to abort a baby, is the first regulation on an abortion procedure the Supreme Court has affirmed.

"I'm so pleased," said Richard Cizik, vice president for governmental affairs of the National Association of Evangelicals. "I have to admit I let out a whoop."

The decision split 5-4, with Chief Justice John Roberts and Justices Antonin Scalia, Samuel Alito, Clarence Thomas, and Anthony Kennedy voting to uphold the law. Kennedy wrote the majority opinion.

The majority disagreed with the Eighth Circuit Court of Appeals, which called the federal ban too vague and said it imposed an undue burden by being too broad and not including an exception to protect the health of a pregnant woman.

"We conclude that the Act is not void for vagueness, does not impose an undue burden from any overbreadth and is not invalid on its face," Kennedy wrote.

Kennedy's support is key, said Clarke Forsythe, president of Americans United for Life. Kennedy has previously supported Roe v. Wade while leaving room for regulations.

"It's important that Kennedy wrote the opinion, but it's also important that Thomas, Roberts, Scalia, and Alito signed it," Forsythe said. "It's a solid five-justice majority rather than a splintered minority joined by another minority."

The justices' united front encourages Richard Land, president of the Southern Baptist Convention Ethics and Religious Liberty Commission. "We have a four-vote solid block for prolife, with Justice Kennedy on some of the extreme issues. … We're one vote away from overturning Roe."

Forsythe is not quite so optimistic. In addition to Kennedy's majority decision, Thomas wrote a separate opinion and said "the Court's abortion jurisprudence, including … Roe v. Wade, has no basis in the Constitution." While Scalia joined Thomas in that opinion, Roberts and Alito did not.

"It means they have taken a cautious approach," Forsythe said of Roberts and Alito, both of whom President Bush nominated in 2005. While state lawmakers now have the green light to enact abortion regulations, they shouldn't attempt a broad prohibition. "There simply aren't enough votes to uphold it," Forsythe said.

The Court's dissent was written by Justice Ruth Bader Ginsberg and joined by Justices Stephen Breyer, David Souter, and John Paul Stevens. Ginsburg said the Court's defense of the federal ban "cannot be understood as anything other than an effort to chip away at a right declared again and again by this Court—and with increasing comprehension of its centrality to women's lives."

The president of the NARAL Pro-Choice America, Nancy Keenan, said in a press release that Bush appointees have moved the Supreme Court toward undermining Roe v. Wade. Pro-life lawmakers will now be emboldened to make further attacks on legal abortions, she said. "The bottom line is clear: elections matter," she added.

With Democratic appointees on the bench instead of Roberts and Alito, the Court likely would have decided 6-3 against the ban, Land said.

Several other late-term abortion methods will not be affected by the ban. About 1.3 million abortions were performed in the United States in 2002, according to the U.S. Census Bureau. The Guttmacher Institute said that 2,200 women had partial-birth abortions in 2000.

"That's an abomination," Land said. "Thank God it's come to an end in the United States."

Related Elsewhere:

The decision is available at the Supreme Court website.

Christianity Today editorialized on the decision yesterday. CT's Weblog also commented.

SCOTUSBlog has several analysis pieces on the Supreme Court's decision, which reporter Lyle Denniston calls "on a par, historically, with Roe v. Wade." The How Appealing blog has many links to news stories and opinion pieces in the mainstream media.

More on the partial-birth abortion ban is available in our full coverage area. Our Life Ethics area has articles on the South Dakota ban and related topics.

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