Breaking: Supreme Court upholds federal ban on partial-birth abortion; Update: Ginsburg cries paternalism; Update: Decision was correct, says Rudy

posted at 10:27 am on April 18, 2007 by Allahpundit

Anthony Kennedy wrote the majority opinion? This is like Darth Vader throwing the Emperor down the well at the end of ROTJ.

Stand by for updates.

Update: Lyle Denniston notes that the Court struck down a state ban on partial-birth abortion in 2000. Why’d they change their mind on the federal law? Because Sam Alito has replaced Sandra Day O’Connor, who voted consistently with the liberal wing in abortion cases. It’s the first time the Court has upheld a total ban on a specific procedure, says Denniston.

Update: By way of background, Kennedy co-wrote the famous plurality opinion in Planned Parenthood v. Casey in 1992 that reaffirmed Roe v. Wade. At the time the Court had seven Republican appointees, so it was widely expected that Roe would be overturned.

If the Chief Justice is in the majority, as Roberts was here, it falls to him to decide who’s responsible for writing the majority opinion. Kennedy probably got the call for two reasons: one, having an author of the Casey opinion put his name on today’s decision lends it a bit of extra authority, and two, since Kennedy is a fencesitter on this issue, Roberts wants to do what little he can to “lock him in” to anti-abortion precedent by making him as personally invested in it as possible.

Update: Here’s the opinion. The gist of the decision is that the federal ban is constitutional even thought it doesn’t provide an exception for the health of the mother. The AP has a few excerpts, but omits the juiciest one: where Ruth Bader Ginsburg, writing in dissent, accuses the five men in the majority of sexism.

Revealing in this regard, the Court invokes an antiabortion shibboleth for which it concededly has no reliable evidence: Women who have abortions come to regret their choices, and consequently suffer from “[s]evere depression and loss of esteem.” Because of women’s fragile emotional state and because of the “bond of love the mother has for her child,” the Court worries, doctors may withhold information about the nature of the intact D&E procedure. The solution the Court approves, then, is not to require doctors to inform women, accurately and adequately, of the different procedures and their attendant risks. Instead, the Court deprives women of the right to make an autonomous choice, even at the expense of their safety.

This way of thinking reflects ancient notions about women’s place in the family and under the Constitution— ideas that have long since been discredited. Compare, e.g., Muller v. Oregon, 208 U. S. 412, 422–423 (1908) (“protective” legislation imposing hours-of-work limitations on women only held permissible in view of women’s “physical structure and a proper discharge of her maternal funct[ion]”); Bradwell v. State, 16 Wall. 130, 141 (1873) (Bradley, J., concurring) (“Man is, or should be, woman’s protector and defender. The natural and proper timidity and delicacy which belongs to the female sex evidently unfits it for many of the occupations of civil life. . . . The paramount destiny and mission of woman are to fulfil[l] the noble and benign offices of wife and mother.”), with United States v. Virginia, 518 U. S. 515, 533, 542, n. 12 (1996) (State may not rely on “overbroad generalizations” about the “talents, capacities, or preferences” of women; “[s]uch judgments have . . . impeded . . . women’s progress toward full citizenship stature throughout our Nation’s history”); Califano v. Goldfarb, 430 U. S. 199, 207 (1977) (gender-based
Social Security classification rejected because it rested on archaic and overbroad generalizations” “such as assumptions as to [women’s] dependency” (internal quotation marks omitted)).

Though today’s majority may regard women’s feelings on the matter as “self-evident,” this Court has repeatedly confirmed that “[t]he destiny of the woman must be shaped . . . on her own conception of her spiritual imperatives and her place in society.

All citations have been omitted except in the second paragraph, so that you can see just what she’s accusing them of. The Bradwell case in particular is notorious in constitutional law for its crudely paternalistic view towards women, as evinced in the quote Ginsburg provides. Linking the majority here to that decision is the jurisprudential equivalent of flipping them the bird.

Update: Thinking of the political consequences here, is Giuliani the big loser? He said in February that he supports a ban on partial-birth abortion — so long as there’s a provision for the health of the mother. Does that mean he doesn’t support this? Because a lot of conservatives are going to be happy today, and not so happy with Rudy if he’s not sharing their happiness. Meanwhile, McCain’s milkin’ it.

Update: Rudy discovers nuance!

Update: As Ace notes, Thomas sided with the majority in upholding the ban even though he hints that he thinks the statute is unconstitutional as a violation of the Commerce Clause.


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Heh, you just won’t get analogies like that on the cable news talk shows.

Dudley Smith on April 18, 2007 at 10:31 AM

YES!!!!!!!!!!!!!

Wade on April 18, 2007 at 10:31 AM

Thank God for Catholics. All five in the majority are Catholics.

And thank God Kennedy acted like a Catholic in this decision.

Notice how ABC won’t even call it “partial birth abortion.” It is just an “abortion procedure.” And they claim they don’t have a liberal bias?

januarius on April 18, 2007 at 10:34 AM

The libs will now start referring to Kennedy as “Fredo” for betraying the family.

Valiant on April 18, 2007 at 10:36 AM

It’s a great day for humanity.

natesnake on April 18, 2007 at 10:39 AM

I am officially shocked! Thank you, President Bush. This procedure is barbaric and should have never been implemented in the first place.

Stormy70 on April 18, 2007 at 10:40 AM

All the pro baby murder folks are screeching!!

Viper1 on April 18, 2007 at 10:41 AM

It is about time. This “procedure” is disgusting. They stick a tube to the baby’s head and suck out the brains and fluids in the body; then, they dumb the empty body into the trash.

Eww, this is something out of Sci-Fi.

Ouabam on April 18, 2007 at 10:44 AM

The libs will now start referring to Kennedy as “Fredo” for betraying the family.

Valiant on April 18, 2007 at 10:36 AM

Priceless.

unamused on April 18, 2007 at 10:45 AM

I think this special event calls for a revisit of the Abortion Hallmark Cards series.

natesnake on April 18, 2007 at 10:45 AM

Heh. Finally Kennedy remembered which president and party appointed him?

Good for him! And good for America!

Vanceone on April 18, 2007 at 10:45 AM

A big victory for Bush and for America. Barely. The importance of having a president appointing conservative judges.

liberty on April 18, 2007 at 10:54 AM

Color me completely befuddled.

spmat on April 18, 2007 at 10:54 AM

Kennedy has been pretty staunchly pro life. What this is is a giant BWAHAHAHAHAHAHAHAHA to Ruth Bader Ginsberg.

E. M. on April 18, 2007 at 10:56 AM

Outstanding news! The Libs are more concerned with terrorists rights then those of a human life.

Sven on April 18, 2007 at 10:57 AM

Kennedy probably got the call for two reasons: one, having an author of the Casey opinion put his name on today’s decision lends it a bit of extra authority, and two, since Kennedy is a fencesitter on this issue, Roberts wants to do what little he can to “lock him in” to anti-abortion precedent by making him as personally invested in it as possible.

What what? This sounds like rank politicking! I am shocked, shocked, I say, that you would imply the Supreme Court of the United States would be susceptible to such tactics!

spmat on April 18, 2007 at 10:57 AM

from the article:

he procedure at issue involves partially removing the fetus intact from a woman’s uterus, then crushing or cutting its skull to complete the abortion.

Abortion opponents say the law will not reduce the number of abortions performed because an alternate method dismembering the fetus in the uterus is available and, indeed, much more common.

ABC actually did describe the procedure. and it is truly gruesome. As a woman who has given birth to two healthy kids, I can tell you with certainty that a woman knows when she’s pregnant by 12 weeks. it’s absurd to think that this procedure would be necessary at all. I also have a childhood friend whose baby was born at 23 weeks, 6 days. He is now 6 years old, healthy and happy. No reason for this procedure. No reason at all. This has been a long time coming.

pullingmyhairout on April 18, 2007 at 10:57 AM

Anthony Kennedy wrote the majority opinion? This is like Darth Vader throwing the Emperor down the well at the end of ROTJ.

It’s like Nancy Pelosi calling for us to get tougher with Syria and Iran.

It’s like Paris Hilton becoming a spokesperson for modesty.

It’s like Metallica supporting unlimited, free downloads of their songs.

Regardless, it’s definitely a positive development, and thank goodness Kennedy ruled the right way on this one at least. And thank you, W., for getting it right in pointing Sam Alito.

thirteen28 on April 18, 2007 at 10:58 AM

then, they dumb the empty body into the trash

You forgot to mention after the SOBs bank it off the the backboard.

In any case, great victory. They seem few and far between these days…

moc23 on April 18, 2007 at 10:58 AM

Could a Medical Ammendment to the COTUS proposal be in the making? Somehow I just don’t see this as going away anytime soon….
But hey, whada I know.

CBarker on April 18, 2007 at 10:59 AM

its good to see the supreme court taking a stand on sucking the brains out of living creatures

lorien1973 on April 18, 2007 at 10:59 AM

I was wondering what that sound was coming from Berkeley, must be some heads a-poppin’.

bbz123 on April 18, 2007 at 11:00 AM

The media wont use the term “partial birth” because of the “birth” part, which implies the fetus has entered the world and is not a fetus anymore and thus that makes the procedure repugnant.

As long as the Libs think of a human life as a mass of tissue or merely a “fetus” then they have no problem puncturing its skull and sucking its mass of brain tissue out to prevent an inconvenience to a woman who had sex with a man she really didn’t like.

Neo on April 18, 2007 at 11:04 AM

This is precisely why I vote for president, based not on party but how he will nominate to SCOTUS. Period. More conservative judges everywhere! Bring back sanity to America once again.

mustng66 on April 18, 2007 at 11:15 AM

Combined with this, things are starting to look bad for the pro-death advocates out there.

PRCalDude on April 18, 2007 at 11:16 AM

I’m still shocked that there’s gambling at Rick’s Cafe! Can you believe it?

This is such common sense. Partial birth abortion is not right, and I’m probably the least socially conservative in this community.

budorob on April 18, 2007 at 11:19 AM

This is the best news I’ve heard in a very depressing week. I’ve been growing unhappy with Bush but now that I am reminded he did this, I’ll cut him some slack.

There is absolutely no reason for any woman to have an abortion much less a partial birth abortion (which is barbaric and inhumane). I say this as a mother of two who should be a mother of three. The biggest regret of my life is having had an abortion in my twenties. If I could just take that back… My husband and I came to realize (a little too late) that we could have gotten married at that point and raised the child. We had family that would have helped and we could also have done it on our own. It would have set is back a little but in hindsight, what a small price to pay. After years of being fed the women’s right BS it was easy to just eliminate the problem. The ignorance of youth. Anyway, I will never forget and I will never stop marking the birthday’s the child should have had…

CCRWM on April 18, 2007 at 11:28 AM

Kennedy probably got the call for two reasons: one, having an author of the Casey opinion put his name on today’s decision lends it a bit of extra authority, and two, since Kennedy is a fencesitter on this issue, Roberts wants to do what little he can to “lock him in” to anti-abortion precedent by making him as personally invested in it as possible.

What what? This sounds like rank politicking! I am shocked, shocked, I say, that you would imply the Supreme Court of the United States would be susceptible to such tactics!

spmat on April 18, 2007 at 10:57 AM

Be that as it may, I love the analysis, Allah. It’ll be hard for Roberts to retract Kennedy’s head from his own rectum, but hopefully he’s up to it.

Jaibones on April 18, 2007 at 11:33 AM

Glenn Reynolds is disappointed.

Quisp on April 18, 2007 at 11:36 AM

I can’t wait to see Linda Greenhouse’s head explode.

eagles5 on April 18, 2007 at 11:36 AM

Linking the majority here to that decision is the jurisprudential equivalent of flipping them the bird.

Right back atcha, Ruth!

KelliD on April 18, 2007 at 11:40 AM

I blame… The Patriarchy.

cue lightning/thunder fx

saint kansas on April 18, 2007 at 11:46 AM

One small step……..forward! It is a good day.

Limerick on April 18, 2007 at 11:48 AM

Abortion opponents say the law will not reduce the number of abortions performed because an alternate method dismembering the fetus in the uterus is available and, indeed, much more common.

Partial Birth or Dismemberment & Extraction, how can anyone read these words and not think barbarism.

nico on April 18, 2007 at 11:51 AM

ABC News story line:
U.S. Top Court upholds ban on some abortions……
nuance

Limerick on April 18, 2007 at 11:59 AM

CCRWM on April 18, 2007 at 11:28 AM

I think it’s safe to say we’ve all made regrettable decisions in our lives. You thought you were making the best choice then, based on your beliefs and your situation. There is no need to beat yourself up for it now. it’s in the past. god bless you for sharing your story.

pullingmyhairout on April 18, 2007 at 12:03 PM

I was enjoying the DU inmate’s responses to this judgment, and then suddenly their entire website stopped working.

It’s like a thousand collective liberal voices all screamed out in unison… and then were silenced.

Enoxo on April 18, 2007 at 12:10 PM

Ironic: Certain Dems have no problem whatsoever taking away our 2nd Amendment rights, yet will fight to the death for their right to kill a child, even as it’s being born. If that doesn’t tell you where their “morals” lie, than what does.

foxforce91 on April 18, 2007 at 12:14 PM

It’s like a thousand collective liberal voices all screamed out in unison… and then were silenced.

Enoxo on April 18, 2007 at 12:10 PM

*snort*

spmat on April 18, 2007 at 12:15 PM

It’s like a thousand collective liberal voices all screamed out in unison..

Must have been a Ginsburg-gasm.

BacaDog on April 18, 2007 at 12:17 PM

If there is another Court vacancy in Bush’s term, there is no way he would get anyone through Judiciary who is anywhere to the right of pledging to overturn this decision if possible.

And given the increasing public stumping by Justices on some issues (such as Breyer’s promotion of the value of consulting foreign decisions for guidance), I wouldn’t even be suprised to see Ginsburg speak out against a Bush nominee (unless forbidden to do so – as opposed to such an action being considered simply “improper”). And I suspects O’Connor would be even more likely to do so.

eeyore on April 18, 2007 at 12:17 PM

Thank you Lord…

(and Ginsburg can kiss my butt!)

Lonevoice on April 18, 2007 at 12:20 PM

That passage from Ginsburg’s opinion shows she hit her head on the table one too many times while listening to arguments. The other justices should protect her by not making her strain herself with the more challenging cases.

pedestrian on April 18, 2007 at 12:21 PM

Finally Kennedy remembered which president and party appointed him.

Kennedy has been pretty staunchly pro life.

Kennedy must be one of those “people pleaser” personalities, who just wants to be liked. Heh, I wish.

smellthecoffee on April 18, 2007 at 12:21 PM

Ruth Bader Ginsburg, writing in dissent, accuses the five men in the majority of sexism.

Patriarchy Triumphant!

Dudley Smith on April 18, 2007 at 12:29 PM

For you no-comprimise conservatives out there, this is exactly why you can’t stay home or vote third-party if someone like Rudi gets the Republican nod. Shrillary or Obama would go directly to judges with “100%” ACLU ratings for Court openings in the next Presidential term.

eeyore on April 18, 2007 at 12:29 PM

from the article:

he procedure at issue involves partially removing the fetus intact from a woman’s uterus, then crushing or cutting its skull to complete the abortion.

Abortion opponents say the law will not reduce the number of abortions performed because an alternate method dismembering the fetus in the uterus is available and, indeed, much more common.
ABC actually did describe the procedure. and it is truly gruesome. As a woman who has given birth to two healthy kids, I can tell you with certainty that a woman knows when she’s pregnant by 12 weeks. it’s absurd to think that this procedure would be necessary at all. I also have a childhood friend whose baby was born at 23 weeks, 6 days. He is now 6 years old, healthy and happy. No reason for this procedure. No reason at all. This has been a long time coming.

pullingmyhairout on April 18, 2007 at 10:57 AM

I could not agree more.

Glynn on April 18, 2007 at 12:32 PM

For you no-comprimise conservatives out there, this is exactly why you can’t stay home or vote third-party if someone like Rudi gets the Republican nod. Shrillary or Obama would go directly to judges with “100%” ACLU ratings for Court openings in the next Presidential term.

eeyore on April 18, 2007 at 12:29 PM

In light of clarification of Rudy’s stand, posted here recently, I would not hesitate to vote for him if he gets the party nomination, though I would prefer Fred Thompson hands down.

Glynn on April 18, 2007 at 12:35 PM

Thanks for the good news Allah! It is something encouraging after the sadness that the nation has experienced over the last few days.

wytammic on April 18, 2007 at 12:40 PM

I say it’s good news for Rudy. People want to like him but the “abortion is the law, but I’ll nominate good judges” line didn’t ring true for many people.

This ruling just pushed to the forefront the forgotten reality of who actually wields power over abortion in this country.

Lehosh on April 18, 2007 at 12:42 PM

It’s like a thousand collective liberal voices all screamed out in unison… and then were silenced.

Enoxo on April 18, 2007 at 12:10 PM

Heh. May the Farce be with them.

infidel4life on April 18, 2007 at 12:47 PM

Thank you Lord…

(and Ginsburg can kiss my butt!)

Lonevoice on April 18, 2007 at 12:20 PM

I admire your comment. It is lovely.

Ouabam on April 18, 2007 at 12:57 PM

Excuse my stupidity. I still don’t understand why they have to commit this crime in this manner. Why don’t they just pull it out totally. Is there some law about how much the baby is pulled out? Tears…ugghh.

tomas on April 18, 2007 at 1:08 PM

Just a bone…

How will they get the Government, AHem, the People to fund stem cell research?

ar_basin on April 18, 2007 at 1:09 PM

tomas, as vile as it sounds..that would then be a birth, therefore a crime.
It’s that stupid, “it’s not human until it screams” line in the sand drawn by the pro-A crowd. Personally I think it’s the only way they can justify it to themselves.

CBarker on April 18, 2007 at 1:26 PM

This is WHY we voted for Bush.

He got 2 conservatives that read the constitution correctly.

Abortion is NOT a right. This should be left up to the states.

Finally something is paying off. I hope we get in 1 or 2 more into the court. Ginsberg needs to go. She is a nut case that doesn’t know how to read law.

msipes on April 18, 2007 at 1:38 PM

Anthony Kennedy wrote the majority opinion? This is like Darth Vader throwing the Emperor down the well at the end of ROTJ.

Haha! That’s good.
Now, can he float down the power core, bring up the old prune and toss him down again?

It’s been a long time waiting. It’s a somber, but welcome victory.

naliaka on April 18, 2007 at 1:52 PM

tomas, as vile as it sounds..that would then be a birth, therefore a crime.
It’s that stupid, “it’s not human until it screams” line in the sand drawn by the pro-A crowd. Personally I think it’s the only way they can justify it to themselves.

Oh my.

tomas on April 18, 2007 at 1:53 PM

This is a narrow victory (5-4) for the prolife movement of which I am pround to be a part of. However in reading Kennedy’s opinon it leaves wide open the appeal which I am sure will follow.

I was speaking to a person that is on the other side and they said to me Why do you want a law with no health exception for the mother? I thought about it for a moment and replied that there is one ….it is called a C section…

robo on April 18, 2007 at 1:57 PM

If anything, this goes to show that the Supreme Court controls the abortion issue in this country, and as long as Conservative judges make up the majority, we’ll be fine.

amerpundit on April 18, 2007 at 2:35 PM

Update: Rudy discovers nuance!

That is what a competent politician does during a primary season. Don’t vamp, don’t machine-gun around the issue trying to be fully consistent, just say the applause line and be done with it. Let’s hope he’s learned from his mistakes this time.

spmat on April 18, 2007 at 2:36 PM

robo on April 18, 2007 at 1:57 PM

Here’s what I don’t understand about needing a health exception for the mother in this instance (perhaps I’m just thinking about this wrong – please help me if I’m missing something).

The statute bans partial birth abortion, not all abortions. It seems if the ‘mother’ is able to deliver the baby (all but the infants head) that her health is not going to be threatened by finishing up the birth of the head and having a live baby instead of a murdered ‘fetus’.

JadeNYU on April 18, 2007 at 2:38 PM

“Ginsburg cries paternalism”

This joke of a judge, that fell asleep during a hearing, should be tossed. Morover, where every federal court is missing it, is that before any abortion/partial birth abortion can be judged, every judge should witness the murderous procedure, first hand.

byteshredder on April 18, 2007 at 2:53 PM

Didn’t Darth Vader Ginsberg actually call Roe vs Wade a completely flawed decision, one that she disagreed with in her Senate confirmation hearings?

Spassvogel on April 18, 2007 at 3:20 PM

BAH! Killing a human that is “partially born” is the same as killing a human zygote. Either way, we have a dead human being.

It’s something, but it sure isn’t enough.

Fatrap on April 18, 2007 at 3:23 PM

Ginsburg – Typical leftist, whines and moans when she doesn’t get her way and cries victim. Loser

darwin on April 18, 2007 at 4:20 PM

Update: Rudy discovers nuance!

Update: Hillary still as shrill as ever.

Kid from Brooklyn on April 18, 2007 at 4:22 PM

Hmm.

To jam scissors into a baby’s skull or not to jam scissors into a baby’s skull.

It’s obvious the leftists would have a tuff time with this one.

locomotivebreath1901 on April 18, 2007 at 5:19 PM

Kid, if this w/b after the primaries, and she’d be the candidate, she would have said “I agree, on the one hand the right to an abortion, on the other hand, bla, bla”. You could have said “Shrillary is a shill as ever” and would stil have been right.

Entelechy on April 18, 2007 at 5:47 PM

The libs have yet to explain how turning a baby breech is safer for the mother. And a question for the ladies. . . exactly how safe would you feel with a scalpel all up ins?

- The Cat

MirCat on April 18, 2007 at 8:27 PM

Isn’t this an evolution the the dems say they are trying to avoid. PBA wasn’t the intent of Legal abortion, but it evolved. They are now saying women’s right might evolve and be taken away. It is a major hypocrisy.

tomas on April 18, 2007 at 8:53 PM

What is ridiculous is the fact that four justices of the U.S. Supreme Court voted to strike down the ban on partial birth abortion as unconstitutional. The decision upholding the ban’s constitutionality should have been unanimous. Forget about the fact that Republican Presidents nominated two of the four dissenters; their dissent shows you how radical the left wing on the U.S. Suprteme Court is.

As for Justice Ginsburg’s screed, she is being a drama queen and should be criticized harshly for it.

Phil Byler on April 18, 2007 at 8:57 PM

Now, do all of you understand how important it is to elect Presidents who will nominate and Senators who will confirm traditionalist judges like Justices Roberts and Alito? We cannot afford for Republicnas and conservatives to sit on their hands, allowing lefty Democrats to be elected, because of unhappiness about this issue or that while forgetting the big picture.

Phil Byler on April 18, 2007 at 9:01 PM

I thank God for this decision.

INC on April 18, 2007 at 10:38 PM

So Ginsburg cries paternalism. Here’s a quarter–call someone who cares. She said it herself, Roe v. Wade is bad law.

smellthecoffee on April 19, 2007 at 12:27 AM

Ruth Vader Ginsburg, with her shrill dissent, displays typical liberal disdain for that with which they do not agree.

hillbillyjim on April 19, 2007 at 6:47 AM

Look – our founding fathers were explicit in giving people the right to kill their own children if they wanted. Why can’t conservatives understand that?

foxforce91 on April 19, 2007 at 10:36 AM

Rudy is now stooping to brown nosing conservatives? And you want this guy in the white house?

paulsur on April 19, 2007 at 12:33 PM

Oldie, but on topic, and never boring from ‘intelligent’ Maxine Waters

Waters told the rallied, “I have to march because my mother could not have an abortion.”

Entelechy on April 19, 2007 at 5:37 PM

I thank God for this decision.

INC on April 18, 2007 at 10:38 PM

I thank God for this decision too. But we need to continue to pray because the because the slaughter of innocents has not ended. I don’t know the exact number, but it’s something like 40 to 50 million children killed since Roe v. Wade, and that’s ONLY America’s dead… not worldwide. We are awash in innocent blood. The practice of sacrificing our children on the alter of convenience must end and hopefully very soon.

Maxx on April 19, 2007 at 11:52 PM