In 2003, Congress passed the Partial Birth Abortion Act. Signed by President Bush, it bans all "partial-birth abortions," described as follows:
(T)he person performing the abortion deliberately and intentionally vaginally delivers a living fetus until, in the case of a head-first presentation, the entire fetal head is outside the body of the mother, or, in the case of breech presentation, any part of the fetal trunk past the navel is outside the body of the mother for the purpose of performing an overt act that the person knows will kill the partially delivered living fetus.
What This Really Means:
The procedure described in this paragraph, called intact dilation and extraction (D&X), is sometimes performed on fetuses as early as 12 weeks. Although the rhetoric surrounding the procedure suggested that the bill would only ban abortions performed when the pregnancy is at term, this is not the case at all. Elective abortions performed during the third trimester, whether they took place by intact D&X or not, were already illegal before the bill was signed and were not affected by this legislation.
A Rare Procedure:
Intact D&X procedures are rare (the vast majority of elective abortions take place before week 12), and generally only performed in cases where the doctor believes that a non-intact D&X abortion, an intact D&X abortion with prior fetal death, or an induced labor abortion would threaten the woman's health. The sticking point for the federal legislation is that it includes no exception for these cases; pro-choice groups have already stated that they would not oppose the partial-birth abortion ban if it included a woman's health exception.
The Central Question:
Does a ban on intact D&X abortions on living fetuses threaten a woman's right to have an abortion, as defined in Roe v. Wade?
The Court's Ruling:
In a 5-4 ruling written by Justice Anthony Kennedy, the Supreme Court held that the Partial Birth Abortion Act does not threaten a woman's right to abortion under Roe v. Wade. Kennedy was joined in the ruling by Chief Justice John Roberts as well as Justices Samuel Alito, Antonin Scalia, and Clarence Thomas.
What This Means:
The ruling holds that:
- As per Roe v. Wade, women have the right to an abortion at any point of previability.
- The Partial Birth Abortion Act would be unconstitutional "if its purpose or effect is to place a substantial obstacle in the path of a woman seeking an abortion before a fetus attains viability."
- The Partial Birth Abortion Act does not meet that standard.
- Therefore, the Partial Birth Abortion Act is constitutional.
Justice Thomas' Anti-Abortion Concurrence:
Justice Clarence Thomas wrote a concurrence, joined by Justice Antonin Scalia, which he wrote to "reiterate (his) view that the Court's abortion jurisprudence ... including Roe v. Wade (1973) ... has no basis in the Constitution." It is significant that the Bush appointees, Chief Justice John Roberts and Justice Samuel Alito, did not join in this concurrence.
Justice Ginsburg's Dissent:
Justice Ruth Bader Ginsburg wrote a dissent, joined by Justices Stephen Breyer, David Souter, and John Paul Stevens, in which she blasted the majority ruling.
Grounds for Dissent:
Justice Ginsburg opposed the majority ruling on four clearly established grounds:
- That the ruling does not adequately address jurisprudence issues brought up in other abortion-related cases over the past 20 years.
- That it "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 (ACOG)."
- That the Partial Birth Abortion Act makes no distinction between previability and postviability abortions.
- That the Partial Birth Abortion Act contains no woman's health exception.
April 18, 2007:
- Gonzales v. Carhart and the Kennedy Coalition: Does the ruling reveal a new 7-2 majority in favor of Roe v. Wade?
- Abortion Rights After Gonzales v. Carhart: What will be the ruling's long-term impact on reproductive rights?
- On Abortion Rights, the Truth is an Affirmative Defense: National Democrats are spinning Gonzales as a broader, more catastrophic ruling than it actually is. This spin plays very well in states like New York and California, but it only emboldens abortion opponents in more conservative states like Mississippi and South Dakota--where the pro-choice movement is needed most.
- Why the Democratic Congress is Sabotaging Its Own Civil Liberties Agenda: Drafted as a response to Gonzales v. Carhart, the Freedom of Choice Act does more harm than good for the pro-choice movement.