NYT Editorial on Abortion Decision

Among the major flaws in yesterday’s Supreme Court decision giving the federal government power to limit a woman’s right to make decisions about her health was its fundamental dishonesty.

Under the modest-sounding guise of following existing precedent, the majority opinion — written by Justice Anthony Kennedy and joined by Chief Justice John Roberts and Justices Clarence Thomas, Antonin Scalia and Samuel Alito — gutted a host of thoughtful lower federal court rulings, not to mention past Supreme Court rulings.

It severely eroded the constitutional respect and protection accorded to women and the personal decisions they make about pregnancy and childbirth. The justices went so far as to eviscerate the crucial requirement, which dates to the 1973 ruling in Roe v. Wade, that all abortion regulations must have an exception to protect a woman’s health.

As far as we know, Mr. Kennedy and his four colleagues responsible for this atrocious result are not doctors. Yet these five male justices felt free to override the weight of medical evidence presented during the several trials that preceded the Supreme Court showdown. Instead, they ratified the politically based and dangerously dubious Congressional claim that criminalizing the intact dilation and extraction method of abortion in the second trimester of pregnancy — the so-called partial-birth method — would never pose a significant health risk to a woman. In fact, the American College of Obstetricians and Gynecologists has found the procedure to be medically necessary in certain cases.

Justice Kennedy actually reasoned that banning the procedure was good for women in that it would protect them from a procedure they might not fully understand in advance and would probably come to regret. This way of thinking, that women are flighty creatures who must be protected by men, reflects notions of a woman’s place in the family and under the Constitution that have long been discredited, said a powerful dissenting opinion by Justice Ruth Bader Ginsburg, joined by Justices John Paul Stevens, David Souter and Stephen Breyer.

Far from being compelled by the court’s precedents, Justice Ginsburg aptly objected, the new ruling is so at odds with its jurisprudence — including a concurring opinion by Justice Sandra Day O’Connor (who has now been succeeded by Justice Alito) when a remarkably similar state abortion ban was struck down just seven years ago — that it should not have staying power.

For anti-abortion activists, this case has never been about just one controversial procedure. They have correctly seen it as a wedge that could ultimately be used to undermine and perhaps eliminate abortion rights eventually. The court has handed the Bush administration and other opponents of women’s reproductive rights the big political victory they were hoping to get from the conservative judges Mr. Bush has added to the bench. It comes at a real cost to the court’s credibility, its integrity and the rule of law.