WASHINGTON — The Supreme Court's conservative majority upheld a nationwide ban Wednesday on a controversial abortion procedure in a decision that sets the stage for additional restrictions on a woman's right to choose.
For the first time since the court established a woman's right to an abortion in 1973, the justices said the Constitution permits a nationwide prohibition on a specific abortion method. The court's liberal justices, in dissent, said the ruling chips away at abortion rights.
The 5-4 decision written by Justice Anthony Kennedy said the Partial Birth Abortion Ban Act that Congress passed and President Bush signed into law in 2003 does not violate a woman's constitutional right to an abortion.
Siding with Kennedy were Bush's two appointees, Chief Justice John Roberts and Justice Samuel Alito, along with Justices Antonin Scalia and Clarence Thomas.
The law is constitutional despite not containing an exception that would allow the procedure if needed to preserve a woman's health, Kennedy said. "The law need not give abortion doctors unfettered choice in the course of their medical practice," he wrote in the majority opinion.
Doctors who violate the law face up to two years in federal prison. The law has never taken effect, pending the outcome of the legal fight.
Kennedy's opinion was a long-awaited resounding win that abortion opponents expected from the more conservative bench.
In dissent, Justice Ruth Bader Ginsburg said the ruling "cannot be understood as anything other than an effort to chip away at a right declared again and again by this court."
Dr. LeRoy Carhart, the Bellevue, Neb., doctor who challenged the federal ban, said, "I am afraid the Supreme Court has just opened the door to an all-out assault on" the 1973 ruling in Roe. Wade.
The administration defended the law as drawing a bright line between abortion and infanticide.
Reacting to the ruling, Bush said that it affirms the progress his administration has made to defend the "sanctity of life."
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"I am pleased that the Supreme Court has upheld a law that prohibits the abhorrent procedure of partial birth abortion," he said. "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."
It was the first time the court banned a specific procedure in a case over how - not whether - to perform an abortion.
Abortion rights groups as well as the leading association of obstetricians and gynecologists have said the procedure sometimes is the safest for a woman. They also said that such a ruling could threaten most abortions after 12 weeks of pregnancy, although Kennedy said alternate, more widely used procedures remain legal.
Action at state level likely
The outcome is likely to spur efforts at the state level to place more restrictions on abortions.
"I applaud the Court for its ruling today, and my hope is that it sets the stage for further progress in the fight to ensure our nation's laws respect the sanctity of unborn human life," said Rep. John Boehner of Ohio, Republican leader in the House of Representatives.
Jay Sekulow, a prominent abortion opponent who is chief counsel for the conservative American Center for Law and Justice, said, "This is the most monumental win on the abortion issue that we have ever had."
Said Eve Gartner of the Planned Parenthood Federation of America: "This ruling flies in the face of 30 years of Supreme Court precedent and the best interest of women's health and safety. ... This ruling tells women that politicians, not doctors, will make their health care decisions for them." She had argued that point before the justices.
More than 1 million abortions are performed in the United States each year, according to recent statistics. Nearly 90 percent of those occur in the first 12 weeks of pregnancy, and are not affected by Wednesday's ruling. The Guttmacher Institute says 2,200 dilation and extraction procedures - the medical term most often used by doctors - were performed in 2000, the latest figures available.
Six federal courts have said the law that was in focus Wednesday is an impermissible restriction on a woman's constitutional right to an abortion.
Ginsburg writes dissent
"Today's decision is alarming," Ginsburg wrote in dissent for the court's liberal bloc. She said the ruling "refuses to take ... seriously" previous Supreme Court decisions on abortion.
Ginsburg said the latest decision "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."
Ginsburg said that for the first time since the court established a woman's right to an abortion in 1973, "the court blesses a prohibition with no exception safeguarding a woman's health."
She was joined by Justices Stephen Breyer, David Souter and John Paul Stevens.
The procedure at issue involves partially removing the fetus intact from a woman's uterus, then crushing or cutting its skull to complete the abortion.
Abortion opponents say the law will not reduce the number of abortions performed because an alternate method - dismembering the fetus in the uterus - is available and, indeed, much more common.
In 2000, the court with key differences in its membership struck down a state ban on partial-birth abortions in a challenge also brought by Carhart. Writing for a 5-4 majority at that time, Justice Breyer said the law imposed an undue burden on a woman's right to make an abortion decision in part because it lacked a health exception.
The Republican-controlled Congress responded in 2003 by passing a federal law that asserted the procedure is gruesome, inhumane and never medically necessary to preserve a woman's health. That statement was designed to overcome the health exception to restrictions that the court has demanded in abortion cases.
But federal judges in California, Nebraska and New York said the law was unconstitutional, and three appellate courts agreed. The Supreme Court accepted appeals from California and Nebraska, setting up Wednesday's ruling.
Kennedy's dissent in 2000 was so strong that few court watchers expected him to take a different view of the current case.
Kennedy acknowledged continuing disagreement about the procedure within the medical community. In the past, courts have cited that uncertainty as a reason to allow the disputed procedure.
"The medical uncertainty over whether the Act's prohibition creates significant health risks provides a sufficient basis to conclude ... that the Act does not impose an undue burden," Kennedy said Wednesday.
While the court upheld the law against a broad attack on its constitutionality, Kennedy said the court could entertain a challenge in which a doctor found it necessary to perform the banned procedure on a patient suffering certain medical complications.
The law allows the procedure to be performed when a woman’s life is in jeopardy.
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