NYT story here. The decision was 5-4, and this is a situation in which the replacement of O’Connor with Alito probably made all the difference. Accord to the NYT:
”Today’s decision is alarming,” Justice Ruth Bader Ginsburg wrote in dissent. 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.”
She was joined by Justices Stephen Breyer, David Souter and John Paul Stevens.
The cases are Gonzales v. Carhart and Gonzales v. Planned Parenthood. The opinion is accessible here (thanks to Irene Weiser of Stop Family Violence) and here (thanks to commenter llhinkle). After a preliminary read-through, the scariest sentence in the opinion to me is this one:
The Act’s failure to allow the banned procedure’s use where ” ‘necessary, in appropriate medical judgment, for preservation of the [mother's] health,’ ” Ayotte v. Planned Parenthood of Northern New Eng., 546 U. S. 320, 327-328, does not have the effect of imposing an unconstitutional burden on the abortion right.
–Ann Bartow
Update: I think C.J. Roberts is really, really, really, horribly and destructively wrong about a lot of things, but dear Goddess, couldn’t we leave his child out of it? Kennedy spends a substantial portion of the opinion describing abortions as graphically and repulsively as possible, part of his “hearts and minds” battle against reproductive freedom for women. Referring to someone’s adopted child with the caption: “John Roberts orders manufacturers to create a greater selection of products for him and his wife to choose from” plays right into his hands.
The opinion is here:
http://www.scotusblog.com/movabletype/archives/05-380_All.pdf
Thanks.
That is a scary sentence.
[...] This morning the Supreme Court upheld the Partial-Birth Abortion Ban Act of 2003 in a 5/4 ruling with the majority opinion written by Justice Kennedy, a concurrence by Justice Thomas and a dissent by Justice Ginsburg. The statute prohibits a particular method of terminating a pregnancy, both pre-viability and post-viability for physicians who “in or affecting interstate or foreign commerce” knowingly perform a partial-birth abortion. Although Justice Kennedy’s opinion uses the “undue burden” language, the majority finds that the complete prohibition of the procedure with no exception for a woman’s health does not pose an undue burden or a substantial obstacle to the “abortion right.” The majority recognizes that there is medical disagreement as to whether the Act’s prohibition imposes significant health risks on women, but nonetheless defers, essentially, with the legislature’s judgment, at least in the context of a facial attack. [...]
Right To Life, Indeed…
Yup, this is certainly the scariest part of today’s decision upholding the ban on the dilation and extraction medical procedure:The Act’s failure to allow the banned procedure’s use where ” ‘necessary, in appropriate medical judgment, for preservation…
[...] The other thing I think it’s important to note is that as a result of this decision, it will be much easier for states to place roadblocks in the way of women’s access to abortion. Lest the naysayers make you believe that this decision is of narrow import because it only affects one procedure. After today’s decision, no longer is it unconstitutional for a state to pass an abortion ban that makes no provision for women’s health. Will lack of access to an abortion leave you blind or paralyzed or sterile? Tough noogies. Or so says today’s Supreme Court. Ann Bartow at Feminist Law Profs picks out the choice quote on this front (pun intended): The Act’s failure to allow the banned procedure’s use where ” ‘necessary, in appropriate medical judgment, for preservation of the [mother’s] health,’ ” Ayotte v. Planned Parenthood of Northern New Eng., 546 U. S. 320, 327-328, does not have the effect of imposing an unconstitutional burden on the abortion right. [...]
[...] Dig a little deeper though, and the ideological shift we’re seeing here is far more worrying. In particular, Feminist Law Professors highlights an interesting sentence in the opinion in which the majority states that [t]he Act’s failure to allow the banned procedure’s use where “‘necessary, in appropriate medical judgment, for preservation of the [mother’s] health,’” Ayotte v. Planned Parenthood of Northern New Eng., 546 U. S. 320, 327-328, does not have the effect of imposing an unconstitutional burden on the abortion right. [...]
[...] Actually, there is a telling bit of text there: “undermines the public’s perception of the doctor’s appropriate role during delivery.” Are they afraid we’ll go back to a system of midwifry where women helped each other through birth and where the beginnings and endings of life were not quite so medicalized as they are today? Where experts and organizations had less control over our lives, and especially over women’s lives?And then there is the sentence that Feminist Law Profs call the scariest sentence in the decision: The Act’s failure to allow the banned procedure’s use where ” ‘necessary, in appropriate medical judgment, for preservation of the [mother’s] health,’ ” Ayotte v. Planned Parenthood of Northern New Eng., 546 U. S. 320, 327-328, does not have the effect of imposing an unconstitutional burden on the abortion right. [...]