He repeated both points in yesterday's opinion. At the same time, he has said the government could strictly regulate abortion and seek to dissuade women from ending their pregnancies. Wade and the right to abortion.Īlthough he is personally opposed to abortion, he has said he was not willing to overturn a long-standing constitutional right. In 1992, he cast a decisive fifth vote to preserve Roe v. The ruling highlights again Kennedy's central role, not only on the court in general but on abortion in particular. There are other safe methods of performing these abortions, he said, and doctors are not entitled to "unfettered choice in the course of their medical practice." Kennedy's opinion acknowledged that some nationally recognized medical experts testified that the ban on the D&X procedure could "create significant health risks" for some women who undergo midterm abortions.īut that alone is not enough to void the law, he concluded. Secondly, the court in the past said it would strike down abortion laws that might threaten the health of some patients. For example, if doctors can show the D&X procedure is needed for women who have a "particular condition," they could seek a court order that exempts them from the law, he said. Challengers still may bring an "as applied" suit, Kennedy said. Now, the court said it would allow such abortion laws to go into effect first when they do not raise a broad constitutional problem. These pre-enforcement challenges are referred to as "facial challenges." Since the Roe decision in 1973, the justices have examined abortion laws before they go into effect and have struck down those that might threaten the life or health of some women in the future. The court's opinion sets out two major changes in the law of abortion. He also sued to strike down the federal ban but was on the losing end in yesterday's ruling in Gonzales v. LeRoy Carhart of Bellevue, Neb., brought a successful challenge to Nebraska's law in 2000. But there is no exception for instances where doctors say it is needed to preserve her health.ĭr. The law permits doctors to use the banned procedure if it is necessary to save the mother's life. The D&X procedure was made a crime by Congress in the Partial-Birth Abortion Ban Act of 2003. This method has been referred to as a "dilation and extraction," or D&X. Usually, doctors would crush the skull, or drain its content, to permit its removal. Some doctors who perform second-term abortions said it was safer and less risky to remove the fetus intact because that method is less likely to expose the woman to injury, bleeding or infection. This procedure is known as a "dilation and evacuation," or D&E, and it remains legal. At this stage, most doctors give the woman anesthesia and use instruments to remove the fetus in pieces. Later in a pregnancy, however, some form of surgery is required. In those cases, the fetus is removed through a suction tube. Most abortions - between 85 percent and 90 percent - are done in the first three months of pregnancy. By most estimates, the procedure is used in less than 5,000 of the more than 1.3 million abortions performed nationwide each year.īut the legal battle turned on the old question of whether a woman and her doctor, or elected lawmakers, should decide on abortion. In one sense, the ruling might have more symbolic than practical significance. "This court believes that members of Congress - not doctors - are in the best position to make medical decisions for their patients." "Today's ruling is a stunning assault on women's health and the expertise of doctors who care for them," said Nancy Northrup of the Center for Reproductive Rights. The ruling culminates a 12-year campaign by the National Right to Life Committee to outlaw the procedure that its leaders first dubbed "partial-birth abortion." They said the procedure was akin to "infanticide" because the fetus was killed just as it emerged from the mother's body.īush praised the decision as a step toward "protecting human dignity and upholding the sanctity of human life." He signed the ban into law four years ago, but it had been struck down as unconstitutional by three lower courts.Ībortion-rights advocates voiced outrage. It "pretends" to protect them "by denying them any choice in the matter," she said. She also called the decision demeaning to women. "The woman may abort the fetus, so long as her doctor uses another method, one her doctor judges less safe for her." Despite Kennedy's talk of "promoting fetal life," the banned procedure "targets only a method of abortion," she said. She noted that this dispute was about how, not whether, abortions would be performed during the second trimester. It "cannot be understood as anything other than an effort to chip away at a right declared again and again by this court," she said.
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