WASHINGTON - The Supreme Court's conservative majority upheld a nationwide ban Wednesday on a controversial abortion procedure in a decision that sets the stage for additional restrictions on a woman's right to choose.
For the first time since the court established a woman's right to an abortion in 1973, the justices said the Constitution permits a nationwide prohibition on a specific abortion method. The court's liberal justices, in dissent, said the ruling chips away at abortion rights.
The 5-4 decision written by Justice Anthony Kennedy said the Partial Birth Abortion Ban Act that Congress passed and President Bush signed into law in 2003 does not violate a woman's constitutional right to an abortion.
Siding with Kennedy were Bush's two appointees, Chief Justice John Roberts and Justice Samuel Alito, along with Justices Antonin Scalia and Clarence Thomas.
The law is constitutional despite not containing an exception that would allow the procedure if needed to preserve a woman's health, Kennedy said. "The law need not give abortion doctors unfettered choice in the course of their medical practice," he wrote in the majority opinion.
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In dissent, Justice Ruth Bader Ginsburg said the ruling "cannot be understood as anything other than an effort to chip away at a right declared again and again by this court."
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"Today's decision is alarming," Ginsburg wrote in dissent for the court's liberal bloc. She said the ruling "refuses to take ... seriously" previous Supreme Court decisions on abortion.
Ginsburg said that for the first time since the court established a woman's right to an abortion in 1973, "the court blesses a prohibition with no exception safeguarding a woman's health."
She was joined by Justices Stephen Breyer, David Souter and John Paul Stevens.
Now I'm not going to get into a debate as to whether this latest Supreme Court ruling is right or wrong, or whether Roe verses Wade should be overturned or not--there are plenty of bloggers that have posted their opinions on this issue from both the liberal and conservative side. And I will also say that for my own personal opinion on abortion, I am pro-choice.
My interest in this latest abortion debate is the political aspects of this Supreme Court ruling. Look at the MSNBC story again, and note which justices voted in favor of this ban--Chief Justice John Roberts, Justices Samuel Alito, Antonin Scalia, Clarence Thomas and Anthony Kennedy. Justice Alito replaced retiring Justice Sandra Day O'Conner. O'Conner was the swing vote in deciding the Court's abortion decisions. According to Ezra Klein:
Abortion is probably the best fitting nutshell you'll find for O'Connor. She preserved the right while offering partial concessions to conservatives. She ended a bright line rule and replaced it with a vague and problematic test. in short, she let the Court swerve right while moderating how sharply it turned, and did so by reformulating the the answer so as to attract centrist support. In short, she legislated the issue out, giving everyone something but nobody much, and standing against radical change.
President Bush replaced O'Conner with a radical conservative in Justice Alito.
This brings us to the real danger on Roe verses Wade. We now have a Supreme Court that has tilted 5-4 in allowing nationwide restrictions on abortion, thus chipping away at the abortion right, and perhaps overturning Roe. Look at who the dissenting justices are on this ruling--Justices Ruth Bader Ginsburg, Stephen Breyer, David Souter and John Paul Stevens. This is essentially the court's liberal wing. Justice Ginsburg is now 74 years old. The oldest Supreme Court judge is Justice Stevens, who just turned 87 last Friday. If one of these two justices die in office, or announce their retirement during the Bush administration, you can bet that President Bush will replace them with another hard-lined, conservative ideologue. It will be enough to tip the Court to the right at the point where Roe could be overturned. What is even more important is the results of the upcoming 2008 presidential elections on the Supreme Court. The 2008 presidential elections are not only about Iraq, but also the Supreme Court. The presidential candidate who succeeds George W. Bush will have the opportunity to possibly select replacements for both Justices Stevens and Ginsburg, considering that this candidate will be re-elected in the 2012 elections. If the 2008 elections are won by a Republican candidate, then you could see a Republican president replacing both Stevens and Ginsburg with hard-lined conservative ideologues, thus sending the Court to the far right where Roe would be overturned by a 7-2 vote.
I will admit that this is all speculation, but it is frightening. Remember that the Republican Party is still controlled by an alliance of PNAC neoconservatives, Religious Right evangelists, and corporate interests. The Religious Right evangelists control the social issues that make up the Republican Party's platform, and they will never approve of a pro-choice presidential candidate. The GOP presidential candidate front-runners have already praised the Court's decision to ban partial birth abortions. According to The Hill:
Former New York Mayor Rudy Giuliani (R), who in the past has supported a woman’s right to a form of late-term abortion, Wednesday joined in the chorus of Republican presidential candidates hailing the Supreme Court decision upholding the ban of the procedure.
“The Supreme Court reached the correct conclusion in upholding the congressional ban on partial birth abortion,” Giuliani said in a statement on the 5–4 decision. “I agree with it.”
When Giuliani ran for Senate in 2000, he said he would not vote to restrict a woman’s right to undergo the procedure.
Now, with social conservatives believed to be a major factor in the GOP primary, Giuliani joined the other top-tier Republicans in applauding the court’s ruling.
“Today, our nation’s highest court reaffirmed the value of life in America by upholding a ban on a practice that offends basic human decency,” former Massachusetts Gov. Mitt Romney said. “This decision represents a step forward in protecting the weakest and most innocent among us.”
Sen. John McCain (Ariz.) hailed the decision as “a victory for those who cherish the sanctity of life and integrity of the judiciary.” The senator added that the ruling also “speaks to the importance of nominating and confirming strict-constructionist judges who interpret the law as it is written, and do not usurp the authority of Congress and state legislatures.”
Giuliani is suppose to be a pro-choice Republican presidential candidate, and yet he is approving of this nationwide abortion ban? If Giuliani becomes president, do you really expect him to appoint a pro-choice Supreme Court justice--especially when the Religious Right folks, such as James Dobson, will be demanding that Giuliani appoint an ideologue who will overturn Roe? The U.S. Supreme Court has been tilted to the conservative side. What the 2008 presidential elections will decide is just how conservative the Court will become. The 2008 presidential elections will decide the fate of Roe verses Wade--the fate of abortion, and the fate of a woman's right to choose.
That is what this election will be about.
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