The Supreme Court reversed course on abortion on Wednesday, upholding the federal Partial-Birth Abortion Ban Act in a 5-4 decision that promises to reframe the abortion debate and define the young Roberts court.
The most important vote was that of the newest justice, Samuel A. Alito Jr. In another 5-4 decision seven years ago, his predecessor, Justice Sandra Day O'Connor, voted to strike down a similar state law. Alito's vote to uphold the federal law made the difference in the outcome announced Wednesday.
The decision, the first time the court has upheld a ban on a specific method of abortion, means that doctors who perform the prohibited procedure may face criminal prosecution, fines and up to two years in prison. The federal law, enacted in 2003, had been blocked from taking effect by the lower court rulings that the Supreme Court overturned.
The banned procedure, known medically as "intact dilation and extraction," involves removing the fetus in an intact condition rather than dismembering it in the uterus. Both methods are used to terminate pregnancies beginning at about 12 weeks, after the fetus has grown too big to be removed by the suction method commonly used in the first trimester, when 85 percent to 90 percent of all abortions take place.
While the ruling will thus have a direct impact on only a relatively small subset of abortion practice, the decision has broader implications for abortion regulations generally, indicating a change in the court's balancing of the various interests involved in the abortion debate.
Most notable was the emphasis in the majority opinion, by Justice Anthony M. Kennedy, on the implication of abortion's "ethical and moral concerns."
"The act expresses respect for the dignity of human life," Kennedy said.
The decision was a major victory for the Bush administration and its vigorous defense of the law, which President Bill Clinton had vetoed twice before President Bush signed it.
Bush welcomed the ruling, saying: "The Supreme Court's decision is an affirmation of the progress we have made over the past six years in protecting human dignity and upholding the sanctity of life. We will continue to work for the day when every child is welcomed in life and protected in law."
It was also a vindication for the strategic choice the anti-abortion movement made 15 years ago, when the prospect of persuading the Supreme Court to reconsider the right to abortion seemed a distant dream. By identifying the intact procedure and giving it the provocative label "partial-birth abortion," the movement turned the public focus of the abortion debate from the rights of women to the fate of fetuses. In short order, 30 states banned the procedure.
The decision on Wednesday came seven years after the court struck down one of those state laws, from Nebraska. Kennedy was a strong dissenter from that decision. With Alito's vote, he was in a position this time to write not for the dissenters but for the new majority.