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It all came down to Samuel Alito Jr. President George W. Bush’s appointment of Alito to replace Sandra Day O’Connor on the Supreme Court last year explains, more than any other factor, Wednesday’s historic Supreme Court decision upholding the federal ban on “partial birth” abortions. Without O’Connor on the newly constituted Roberts Court, the thin 5-4 majority that had held the line in favor of abortion rights finally cracked. Wednesday’s ruling in the consolidated cases Gonzales v. Carhart and Gonzales v. Planned Parenthood Federation of America was the first upholding a federal ban on a specific abortion procedure since the Court declared the right to an abortion in Roe v. Wade in 1973. It represented a dramatic shift on the Court that dissenting Justice Ruth Bader Ginsburg called “alarming.” The Court found that the 2003 law, by banning only the so-called intact dilation and extraction (D&E) procedure, does not pose an “undue burden” on women’s right to choose an abortion. Justice Anthony Kennedy, writing for the majority, said the law properly advances the government interest in “regulating the medical profession in order to promote respect for life, including the life of the unborn.” The procedure, in which the fetus is withdrawn intact from the woman’s uterus, was described in graphic detail. Kennedy, who usually holds “swing vote” status on the post-O’Connor Court, had already supported a ban on partial-birth abortions, dissenting in a 2000 decision that struck down a Nebraska law. During oral arguments last November, Kennedy showed some signs of wavering, but in the end he stuck with his opposition to the procedure. The federal law, he said, was more carefully drafted and was not unconstitutionally vague. Kennedy voiced concern that women “come to regret their choice to abort the infant life they once created and sustained.” Chief Justice John Roberts Jr.’s arrival on the Court in 2005 did not shift the balance on abortion, because he replaced William Rehnquist, a strong abortion foe. The spotlight shifted to Alito, the other new justice, as the one to watch because he replaced O’Connor, who was in the majority in 2000. Without separate comment, Alito voted with Kennedy, and they were joined by Roberts and Justices Antonin Scalia and Clarence Thomas. Ginsburg, who has spoken of her loneliness on the bench as the Court’s only woman justice, somberly read from her dissent, asserting that the majority opinion “cannot be understood as anything other than an effort to chip away at a right declared again and again by this Court.” In what could be viewed as a prayer that no more Bush appointees join the Court, Ginsburg added, “A decision of the character the Court makes today should not have staying power.” Ginsburg also criticized Kennedy’s language about women’s post-abortion regrets, which she said “recalls ancient notions about women’s place in society and under the Constitution — ideas that have long since been discredited.” The ruling leaves the door open for further litigation against the law by women actually seeking abortions, as opposed to the “facial” challenge to the law decided Wednesday. But women’s groups said that “as-applied” challenges to abortion laws are ill-suited for women whose health might be at immediate risk. Abortion-rights groups immediately attacked the decision as a major blow that could lead to other legislation, both state and federal, chipping away at Roe. “This is a serious setback for women’s health,” says Cecile Richards, president of Planned Parenthood. “It means that politicians are making important health decisions for women, not doctors.” Nancy Northup, president of the Center for Reproductive Rights, which also challenged the law, says, “It took just a year [for the Roberts Court] to overturn three decades” of Court precedent. Significantly, however, only Scalia signed onto a concurring opinion written by Justice Clarence Thomas declaring that Roe v. Wade “has no basis in the Constitution.” That suggests that neither Roberts nor Alito are ready to overturn Roe — yet. And University of Cambridge professor David Garrow, author of a book on the Court’s abortion jurisprudence, says the decision is a “limited and rather modest ruling,” because Kennedy repeatedly says the law bars only one specific abortion procedure. Garrow did caution, however, that the ruling might have the effect of “chilling” physicians from using procedures not affected by the federal law for fear of prosecution. Supporters of the ban on partial-birth abortion, for their part, celebrated a long-sought victory. “As Congress itself declared in the legislation, the act protects vulnerable and innocent human life from an inhumane, dangerous and unnecessary procedure, and we are gratified by the Court’s ruling today,” said a Justice Department spokesman. “This is a monumental victory for the preservation of human life,” said Jay Sekulow, chief counsel of the American Center for Law and Justice, in a statement. “This decision represents an important shift in the ongoing battle to protect human life and represents a very significant pro-life victory in the abortion debate.” The ACLJ filed a brief in the cases.That shift is a milestone in a long campaign to remake the high court’s abortion law, begun by Presidents Ronald Reagan and George H.W. Bush. Even as they appointed real and purported conservatives to the Supreme Court, a majority had clung to the Roe precedent — thanks in large part to O’Connor, Kennedy, and Justice David Souter — who rescued Roe from oblivion in Planned Parenthood v. Casey in 1992. Then Clinton appointees Ginsburg and Stephen Breyer helped stave off major change on abortion for more than 11 years, during which the Court had no vacancies. But O’Connor’s departure and the death of Rehnquist finally made the difference. “The replacement of moderate Justice Sandra Day O’Connor with ultraconservative Justice Samuel Alito has brought the Court to the brink of judicial disaster,” said Ralph Neas, president of the liberal People for the American Way, in a statement. “Today’s decision will energize a crucial public conversation with presidential candidates about the importance of future Supreme Court justices.”
Tony Mauro can be contacted at [email protected].

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