D & X / PBA procedures

The Supreme Court's 2007 decision:
Reactions and consequences

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A description of the Court's decision is covered in a separate essay

Reactions to the court decision:

Mark Sherman of the Associated Press wrote:

"It was the first time the court banned a specific procedure in a case over how — not whether — to perform an abortion."

"Abortion rights groups have said the procedure sometimes is the safest for a woman. They also said that such a ruling could threaten most abortions after 12 weeks of pregnancy, although government lawyers and others who favor the ban said there are alternate, more widely used procedures that remain legal." ₁

Justice Ruth Bader Ginsburg, writing for the minority, said that the ruling:

"... refuses to take ... seriously [previous Supreme Court decisions on abortion. It] ... "tolerates, indeed applauds, federal intervention to ban nationwide a procedure found necessary and proper in certain cases by the American College of Obstetricians and Gynecologists. ... "For the first time since Roe, the court blesses a prohibition with no exception safeguarding a woman's health. _1,2

Sen. Dianne Feinstein (D-CA) said that by validating a ban on such abortions, "the court has taken the first major step back" toward the days when abortion was illegal. ₃

Kim Gandy, president of the National Organization for Women said:

"What it says to me is that this court is willing to disregard prior precedent, and they are waiting for an opportunity to overturn Roe." ₃

Douglas Johnson of the National Right to Life Committee, an anti-abortion group, said the ruling "provides further encouragement" to state and federal lawmakers to enact better "informed consent" laws, such as those requiring that women be offered an opportunity to see ultrasounds or hear about a fetus' ability to feel pain before they have an abortion. ₃

Tony Perkins of the Family Research Council, a fundamentalist Christian advocacy group, said:

"We have a court now that has correctly yielded to the Congress and the legislative branch. This will bolster state legislators who are reflecting the views of their constituents on abortion." ₃

Rep. Steve Chabot, (R-OH), a leading sponsor of the federal ban, said:

"It forced many people to consider what actually occurs when an abortion is carried out. It's not a reach for one to think that the child is just as much a human being earlier in the process, and that those other forms of abortion are pretty awful too." ₃

Nancy Keenan, the president of NARAL Pro-Choice America said:

"The court has given anti-choice state lawmakers the green light to open the flood gates and launch additional attacks on safe, legal abortion, without any regard for women's health." ₃

Ralph Neas, president of People for the American Way, said:

"Today's 5-to-4 decision is further proof that the confirmation of right-wing nominees to the Supreme Court has disastrous consequences for American' rights and liberties." ₂

James Bopp, general counsel of the National Right to Life Committee, was pleased at the court's ban. He said:

 "Partial-birth abortion involves killing a child just inches from full delivery. One of our concerns was the right to abortion moving outside the womb now during delivery and really being an expansion of the right. The court has rejected that." ₂

Sen. Barbara Boxer (D-CA) and Rep. Jerrold Nadler (D-NY) said they would reintroduce a bill to enshrine a woman's right to have an abortion in federal law. ₃

Consequences of the Supreme Court decision:

About 900,000 out of the one million abortions performed annually in the U.S. are done during the first trimester and are thus unaffected by this ruling. For more advanced pregnancies, there are alternative, although more risky, procedures available for second and third trimester abortions that do not involve a D&X procedure.

There is also a loophole in the law. It only bans a range of D&X procedures and then only if they are performed on a living fetus. A physician could theoretically terminate the life of a fetus while it is still in the woman's uterus. At that point, the fetus would be dead and a D&X procedure would be legal.

It is possible that the Democrat-controlled House and Senate will revisit the law and add a health exemption for cases in which the adverse health consequences would be extremely serious. This would probably be vetoed by the President. It is doubtful that there would be sufficient votes in the present Congress to overturn the veto.

It is highly probable that many states will initiate bills to restrict abortions in various ways.

It is likely that some women will die as a result of this ruling. Some physicians will be forced to make a judgment call whether the woman will die or whether she will "only" suffer very serious health consequences if a D&X procedure is withheld. The doctor might well err on the side of withholding the procedure. Otherwise he or she might face a felony conviction under the act, a lengthy jail sentences and the loss of their profession.

If the fetus is dead, then a D&X procedure is permitted under the act. However, if the fetus is so malformed that it will not gain consciousness and/or will not live for more than a few minutes as a newborn, then the procedure must be withheld. Some women will probably be seriously and permanently disabled in order to have a newborn that dies almost immediately.

References:

The following information sources were used to prepare and update the above essay. The hyperlinks are not necessarily still active today.

1. Mark Sherman, "Court backs ban on abortion procedure," Associated Press, 2007-APR-18, at: http://news.yahoo.com/
2. Warren Richey, "US Supreme Court allows late-term abortion ban. The 5-to-4 ruling upholds a ban on 'partial-birth' abortion. In 2000, the court had struck down a similar ban," The Christian Science Monitor, 2007-APR-19. at: http://www.csmonitor.com/
3. Julie Hirschfeld Davis, "Abortion ruling emboldens opponents," http://news.yahoo.com/