Chipping Away at Roe v. Wade

CHIPPING AWAY AT ROE v. WADE….The Supreme Court has upheld a nationwide ban on the procedure that dare not speak its name. At least not in the Washington Post unless it’s in quotes.

It’s “partial birth abortion” to its foes and “intact dilation and extraction” to its supporters, but whatever you call it, it’s now illegal. Anthony Kennedy wrote the majority opinion, and with the usual conservatives going along the final decision was 5-4 in favor of upholding the Partial Birth Abortion Ban Act of 2003 despite the fact that it contains no health exception provision whatsoever. Ruth Bader Ginsburg wrote the dissent:

“Today’s decision is alarming,” Ginsburg wrote for the minority. “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….And, for the first time since Roe, the Court blesses a prohibition with no exception safeguarding a woman’s health.”

She added: “Retreating from prior rulings that abortion restrictions cannot be imposed absent an exception safeguarding a woman’s health, the Court upholds an Act that surely would not survive under the close scrutiny that previously attended state-decreed limitations on a woman’s reproductive choices.”

There’s a sense in which this is more symbolic than anything else, since IDX is infequently used and there are almost always alternate procedures available. But it’s not entirely symbolic, and in any case, symbols matter. What’s more, as Ginsburg points out, the different standard of scrutiny the court applied in this case will affect future abortion cases as well. It’s sad news.

UPDATE: The majority opinion really referred to obstetricians as “abortion doctors” throughout? Apparently so. Wow.

UPDATE 2: I had some kind of brain freeze when I wrote this and ended up implying that Kennedy had previously been opposed to banning IDX. It’s fixed now.