THE U.S. SUPREME Court on Wednesday executed an unconscionable U-turn on abortion, upholding a restrictive federal law that is virtually indistinguishable from a Nebraska statute it struck down only seven years ago.
For all his paeans to precedent during his Senate confirmation hearings, Chief Justice John G. Roberts Jr. joined in the 5-4 decision affirming the tendentiously titled Partial-Birth Abortion Ban Act of 2003. But it was Roberts’ fellow Bush appointee, Justice Samuel A. Alito Jr., who made the difference by voting opposite to the way his predecessor, Sandra Day O’Connor, did in 2000. If there is any silver lining, it’s that only two justices, Clarence Thomas and Antonin Scalia, suggested that Roe vs. Wade should be overturned outright.
Justice Ruth Bader Ginsburg was correct when she said in her dissent that the majority gave short shrift to previous abortion-rights decisions, including the 1992 Planned Parenthood vs. Casey decision in which the court reaffirmed the “essential holding” of Roe: that women have a constitutional right to legal abortions.
Disappointingly, it was one of the authors of the Casey opinion — Justice Anthony M. Kennedy — who wrote Wednesday’s majority opinion. Kennedy argued that the federal law, interpreted properly, was narrower than Nebraska’s.
It’s a distinction without a difference. Both laws banned an exceedingly rare second-trimester abortion technique — properly called dilation and extraction — in which a doctor partially extracts a fetus from the uterus into the birth canal, where he then collapses the skull by suctioning its contents. Neither law provided an exception to preserve the health of the woman.
Kennedy did say that, although the court rejected the law’s unconstitutionality “on its face,” doctors could still argue that there were “well-defined” circumstances in which the procedure would be necessary. But that cumbersome option could have been avoided if the court simply had told Congress, as it told Nebraska, that it must provide a health exception.
This muddled decision doesn’t attack the basic holding of Roe vs. Wade, and it will have no effect on the vast majority of abortions performed in this country. But Ginsburg is right that it is a retreat, and one that can’t be explained by anything other than a change in the court’s membership.