Reading the Abortion Ruling
Is the high court's 'partial-birth' decision a major shift or a narrow exception?
Until last week, American women seeking a mid- or late-term abortion could undergo one of two procedures. The physician could partially extract the fetus before collapsing its skull, or-far more commonly-he could dismember the fetus in the uterus, effectively killing it before removing it. Now, unless the physician is willing to risk criminal charges, the first procedure is out.
That, at least, is the most immediate result of the Supreme Court's 5-to-4 ruling to uphold the federal Partial-Birth Abortion Ban, passed by Congress in 2003 but blocked by three lower courts that faulted the law for not having an exception for protecting the health of the woman. The decision also shows that the replacement of Sandra Day O' Connor by Samuel Alito makes the John G. Roberts court decisively different from the Supreme Court that rejected (by a 5-to-4 vote) a similar state statute seven years ago.
But whether the court's position represents a decisive first step toward dismantling Roe v. Wade is still far from clear. The banned technique, which antiabortion advocates have attacked as being almost indistinguishable from the killing of newborn infants, has been used in only about 0.17 percent of American abortions-though activists on both sides of the abortion debate agree that the ruling has implications that go far beyond a particular procedure.
Medical consensus. For abortion-rights activists, they are mostly dire. Charging that the court's majority ignored a broad medical consensus (including the official position of the American College of Obstetricians and Gynecologists), Nancy Keene, president of NARAL Pro-Choice America, says the ban "is harmful to women's health and interferes with medical decision making." One way it does so, those activists insist, is by making it difficult for doctors to understand what exactly they are allowed, or not allowed, to do. Just as troubling, says NARAL spokesman Ted Miller, is that the decision now "opens the floodgates for states to chip away at Roe."
On the last point, many abortion opponents happily agree. Even before the decision, Amherst College political scientist Hadley Arkes had argued that such a ruling would be a first step toward ending the regime of Roe:"What the court would be saying in effect is, 'We are now in business to consider seriously, and to sustain, many plausible measures that impose real restrictions on abortion.'"
Supporting that view, Jay Sekulow, chief counsel for the antiabortion American Center for Law and Justice, believes state legislatures will now be emboldened to pass other abortion restrictions, including ones requiring informed consent. He also sees the decision as vindicating his and other efforts to weaken the medical exception argument. At the same time, Sekulow says, exposing the gruesomeness of the procedure has raised awareness of what all abortions entail. "This was a significant shift in abortion jurisprudence," Sekulow says. "It's the debate we wanted, and now it's the debate we'll have."
But is it the debate most Americans want? Activists on both sides are claiming that the decision will swell their numbers. If so, says David Masci of the Pew Forum on Religion and Public Life, abortion could become a more visible issue in the next presidential election, particularly in the primaries. At the very least, it will force candidates, who have already weighed in along partisan lines, to speak even more clearly about where they stand.
But potential ironies abound. A 2006 Pew poll found that 51 percent of Americans want abortion permitted in all or most cases, while 46 percent say it should be illegal in all or most instances. Even more significant, though, two thirds of Americans think that the nation needs to find a "middle ground." So how will this decision play among that majority? If it seems to move things toward the reasonable middle, Masci says, most Americans are to likely be satisfied and thus less inclined to see abortion as a crucial election issue. But if the majority comes to see the decision as the first step toward dismantling Roe, it could mobilize Americans in ways that abortion opponents would regret. "A lot depends," says Masci, "on how successful the activists on both sides are in sounding the alarm bells."
This story appears in the April 30, 2007 print edition of U.S. News & World Report.