U. S. Supreme Court delights abortion foes, upholds ban on "partial-birth" abortions. Is "right" to abortion next to go?

The U. S, Supreme Court has issued an opinion that has GREATLY delighted anti-abortion foes and others who are horrified by the senseless killing of unborn babies, euphemistically misnamed "partial birth" abortions. The 5 to 4 decision, written by swing voter, Justice Kennedy, and joined by the Court's other Conservatives, is Gonzales vs. Carhart, 530 U. S. _____ (2007). Nebraska was one of the first sovereigns to try and outlaw the procedure. My boss at the time, Attorney General Don Stemberg's attempt to do so was rebuffed by the Supreme Court in Stenberg vs. Carhart, 530 U. S. 914, which found Nebraska's attempt violative of Roe vs. Wade and others. Reacting to the rebuff, Congress passed a new ban on "partial birth" abortions (both pre-viable and post-viable] and prohibited "knowingly perform[ing] a partial-birth abortion . . . that is [not] necessary to save the life of a mother." 18 U. S. C. §1531(a).

The Act defines "partial-birth abortion," in §1531(b)(1), -- in "anatomical landmarks" -- as a procedure in which the doctor: (A) deliberately and intentionally vaginally delivers a living fetus until, in the case of a head-first presentation,the entire fetal head is outside the [mother’s] body . . . , or, in the case of breech presentation, any part of the fetal trunk past the navel is outside the [mother’s] body . . . , for the purpose of performing an overt act that the person knows will kill the partially delivered living fetus”; and "(B) performs the overt act, other than completion of delivery, that kills the fetus."

The procedure requires, as the court found, a woman to first "vaginally delive[r] a living fetus." Then for the living fetus to be killed. This overt act of performing an intact D&E is what the Act criminalizes and penalizes by fine and up to 2 years in prison.

The Supreme Court CORRECTLY overruled the lower courts, which found that the Act was fatally flawed because it did not require a finding that the health of the mother was in danger, and brushed aside any concerns of the Act's vagueness and that the Act "unduly burdened" a woman's right to have an abortion. The Court held instead, while applying the law of Planned Parenthood of Southeastern Pa. v. Casey, 505 U. S. 833 (1992), that "an undue burden on the pre-viability abortion right exists if a regulation’s 'purpose or effect is to place a substantial obstacle in the [woman’s] path' ..., but that "[r]egulations ["which are rational and pursue legitimate ends"], and which do no more than create a structural mechanism by which the State . . . may express profound respect for the life of the unborn are permitted, if they are not a substantial obstacle to the woman’s exercise of the right to choose."

Thus it was not unreasonable for Congress to find, said the Court, "Implicitly approving such a brutal and inhumane procedure by choosing not to prohibit it will further coarsen society to the humanity of not only newborns, but all vulnerable and innocent human life, making it increasingly difficult to protect such life [and] that partial-birth abortion, more than standard D&E, undermines the public’s perception of the doctor’s [which the state can regulate] appropriate role during delivery, and perverts the birth process."

As for proper safeguards for women whose lives may be in danger unless the prohibited act was used, the Court held that "the proper means to consider [those] exceptions is by as-applied challenge", while noting that "the Act [complained of here] already contains a life exception" [in the form of] "... an injection that kills the fetus ... " before a prohibited live birth.

In a concurring opinion, Justices Thomas, joined by Justice Scalia "reiterate[d] [their] view that the Court’s abortion jurisprudence, including Casey and Roe v. Wade, 410 U. S. 113 (1973), has no basis in the Constitution," signaling to anyone who can read that, if given a chance, they'll overrule ANY cases that find a federal constitutional right to abortion.

The dissenting opinion, authored by Justice Ginsburg and joined by the Court's other Liberal Justices, aptly noted that "[t]he Court’s hostility to the right Roe and Casey secured is not concealed".

After this opinion today, one can expect that this "hostility to Roe and Casey", described by Justice Ginsburg and the Dissenters, will manifest itself in the form of a Supreme Court decision finding that there is NO federal constitutional right to have an abortion.