Court overturns partial-birth abortion ban

By Michelle Martin
Staff writer

Catholic and other pro-life leaders decried the U.S. Supreme Court’s June 28 narrow decision to overturn Nebraska’s ban on partial-birth abortions because it could violate women’s rights to abortion and did not include an exception for the health of the mother.

A day after handing down the 5-4 decision, the high court said lower federal courts should reconsider the 7th U.S. Circuit Court of Appeal’s ruling that upheld the laws of Wisconsin and Illinois. A second order let stand an 8th Circuit Court decision that struck down Iowa’s ban on partial-birth abortion.

“Today’s Supreme Court decision is a victory for barbarism,” said Cardinal George in a statement. “It pits the court and the Constitution itself against the legal protection of children who are not wanted. The primary duty of the government is to protect the weak from the powerful. The Supreme Court has betrayed this duty, and with it, the very foundation of our Constitution.”

Writing for the majority, Justice Stephen Breyer said the law failed the constitutionality test by not providing an exception from the ban when the proscribed procedure may be medically safest for the mother.

He also said the statute failed to adequately distinguish the difference between two similar types of abortion—dilation and evacuation, or D&E, and the procedure known as “partial-birth abortion,” called dilation and extraction, or D&X.

“Using this law some present prosecutors and future attorneys general may choose to pursue physicians who use D&E procedures, the most commonly used method for performing pre-viability second trimester abortions,” Breyer said. “All those who perform abortion procedures using that method must fear prosecution, conviction and imprisonment.”’

In the procedure known as partial-birth abortion, the fetus is partially delivered, feet first, before surgical scissors are stabbed into the base of the head. The brain is then removed by suction, allowing for easier delivery of the head.

In dilation and evacuation, an arm or leg of a live fetus may be pulled into the birth canal during the procedure. Nebraska’s law banned any abortion where part of the live fetus is pulled into the birth canal.

Although she concurred with the majority, Justice Sandra Day O’Connor wrote that she might change her opinion if the law had not allowed that interpretation.

“If Nebraska’s statute limited its application to the D&X procedure and included an exception for the life and health of the mother, the question presented would be quite different than the one we face today,” O’Connor wrote.

But making the changes O’Connor suggested would make any partial-birth abortion ban meaningless, said Nora O’Callaghan, director of the Archdiocese of Chicago’s Respect Life Office. “A law with those changes would not prevent any partial-birth abortion from happening,” she said.

Helen Alvare, director of planning and information for the U.S. bishops’ Pro-Life Secretariat, agreed. “Justice (Anthony) Kennedy said it brilliantly in his dissent,” Alvare said. “Health exceptions can be interpreted to mean any kind of abortion you want.”

The majority also included Justices John Paul Stevens, David Souter and Ruth Bader Ginsburg. Dissenting were Chief Justice William Rehnquist and Justices Antonin Scalia, Anthony Kennedy and Clarence Thomas.

In his dissent, Scalia predicted that the decision would be “greeted by a firestorm of criticism—as well it should.”

“We’re not surprised by at the Supreme Court’s decision,” said Joseph M. Scheidler, executive director of the Chicago-based Pro-Life Action League. “The court has made it perfectly clear on numerous occasions that it has no intention of acknowledging the right to life of an unborn child.”

“The ...Court has taken a really extreme view in this position,” O’Callaghan said. “The majority of the people in this country think this partial-birth abortion procedure is tantamount to infanticide. Inevitably, this is going to change the focus to the presidential election and who the new Supreme Court justices are going to be.”

In another abortion-related decision June 28, the court ruled 6-3 to uphold a Colorado law prohibiting abortion protests or “sidewalk counseling “within eight feet of people approaching any health care facility.

Writing for the court, Stevens said the statute is not “regulation of speech,” but “a regulation of the places where some speech may occur.” He said the law is viewpoint neutral and “simply establishes a minor place restriction on an extremely broad category of communications with unwilling listeners.”

Catholic News Service contributed to this report.

BACK