Supreme Court Upholds Late Abortion Ban: Right-Wing Judicial Activism Run Amok

By Joshua Holland, AlterNet. Posted April 18, 2007.

Last year, in defending his decision to vote for the confirmation of Samuel Alito to the Supreme Court, Senator Bill Nelson (D-NE) said that it was based, in part, on Alito's "pledge that he would not bring a political agenda to the court."

Today, Nelson and the 18 other Democratic Senators who voted against the attempted filibuster of Alito reaped what they sowed. The new court -- the first in American history made up of a majority of conservative Catholics -- upheld the 2003 ban on so-called "partial birth" abortions, a made-up term that's become a hot-button issue for social conservatives, but is largely based on junk science and flies in the face of medical "best practices." It will go down as a text-book case of right-wing judicial activism, with the justices essentially overruling the medical community.

In upholding the ban, the Supreme Court overturned a critical legal principle that's guided courts for almost two decades: that any restriction on abortion must have an exception for the life and health of the pregnant woman.

That principle was the key to the landmark decision, Stenberg v. Carhart, which overturned a similar ban in Nebraska. Stenberg, while split five to four, was not a wishy-washy decision. The majority found that Nebraska's law violated the constitution as interpreted in both Roe v. Wade and the 1992 case, Planned Parenthood v. Casey.

The Supremes made two important findings in that case. First, the Nebraska ban didn't have an exception for cases when the health of the mother might be threatened. Second, the court found that the ban on "partial-birth abortions" (a term coined by abortion foes that appears nowhere in the medical literature) was too vague and, as such, placed too great a burden on a woman's right to determine her own care.

It's worth noting that Alito cited Carhart in 2000, when, as a member of the Third District Court of Appeals, he voted to strike down New Jersey's ban on late-term abortions. "The New Jersey statute," he wrote, "like its Nebraska counterpart, lacks an exception for the preservation of the health of the mother. Without such an exception, the New Jersey statute is irreconcilable with [Stenberg]. What's more, Alito supported the court's finding that "the Nebraska [ban] applied, not only to the "dilation and extraction" or D & X procedure, but also to the more commonly used D & E procedure." In other words, Alito agreed that the ban could apply to all sorts of otherwise legal abortion procedures.

At the time, many in the forced childbirth movement argued that Alito's decision in the New Jersey case proved that he would not be reliably anti-choice. But as today's ruling shows, he didn't hesitate to overturn Stenberg when he got the chance.

(I should note that Alito and Chief Justice Roberts both declined to join a concurring opinion by Scalia and Thomas that would have overturned Roe v. Wade.)

What's remarkable about the bill upheld by the Supremes today is that about 50 percent of the text is devoted to explaining why Congress is justified in ignoring the court's findings in Stenberg.. The essence of the argument is that Congress has different standards of evidence and needn't consider the same data that the courts looked at. The argument was supported with case law from challenges to the Voting Rights Act and a telecommunications law, neither of which were questions of scientific fact. In overturning Stenberg, the court effectively affirmed the idea -- long popular among the Christian-right -- that the judiciary in general should and can be 'restrained' by legislative bodies.

The text of the law argues that "the great weight of evidence presented at the Stenberg trial and other trials challenging partial-birth abortion bans, as well as at extensive Congressional hearings, demonstrates that a partial-birth abortion is never necessary to preserve the health of a woman." It goes on to say, "A prominent medical association has concluded that partial-birth abortion is 'not an accepted medical practice.'" (Physicians who testified before Congress included members of the Christian Medical and Dental Associations.) The American Medical Association and the American College of Obstetricians and Gynecologists, while differing slightly in their positions, both opposed the ban as it was written.

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Joshua Holland is an AlterNet staff writer.

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