Partial Birth Abortion Ban Upheld by SC (UNCoRRELATED)

In what has come as somewhat of a surprise, the Surpreme Court has handed a victory to the Bush administration by reversing a lower court and upholding the ban on what is euphemistically called "partial birth abortion".

The justices, voting 5-4, refused to invalidate the 2003 law even though it lacks an exception for cases posing a risk to the mother's health. The court also rejected claims that the Partial Birth Abortion Ban Act is so vaguely worded it would force doctors to forgo a commonly used, constitutionally protected abortion technique for fear of prosecution.
The decision heralds a more receptive approach toward abortion restrictions from a court that in 2000 overturned a similar Nebraska law. Bush's appointees, Chief Justice John Roberts and Justice Samuel Alito, helped turn the tide in today's case, joining Justices Anthony Kennedy, Antonin Scalia and Clarence Thomas.

The court stopped short of overruling the 2000 case, Stenberg v. Carhart, saying the federal statute was narrower in key respects than the Nebraska law. The majority also left open the possibility that doctors could ask a judge for permission to use the disputed procedure for particular medical conditions that pose a health risk to the mother.

Rudy Giuliani is going to be so disappointed.

The medical term for this form of abortion is intact dilation and evacuation or IDX, which is descriptive of a process to remove a late-term foetus by dilating the cervix, pulling the foetus out through the birth canal by the feet but keeping the head in the womb. The physician then crushes the skull, or collapses it by aspirating the brain, and completes the removal of the "intact" foetus. Its a procedure that generally takes 2-3 days because of the dilation process.

Supporters of the continued legality of this procedure take pains to emphasize that this type of procedure is only used in 1.4% of all abortions. The implication is that the rarity suggests that procedure is a medical necessity, not merely a convenience as with 95% of abortions generally. Since the procedure remains legal for medically necessary circumstances, such as when the life of the mother is threatened, it will remain to be seen in future statistics, whether the current number of such procedures remains static or declines.

That is perhaps less important than the legal precedent being set here--a breach in the wall of what has hereto been an unlimited right.

Even relatively liberal judges like Sandra Day O'Connor warned of an inevitable clash on the issue of abortion rights as medically technology progressed to the point that younger and younger foeti could prospectively survive outside of the womb. She was addressing a point central to the question just decided by the court--where is the line between abortion and infanticide?

I suspect that Justice Kennedy probably felt that IDX and D&E procedures were sufficiently far enough over the line that the ban should be upheld.