Beliefnet

Excerpts from the Supreme Court's 5-4 decision Wednesday upholding the ban on a controversial abortion procedure that opponents call partial-birth abortion:

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Justice Anthony Kennedy, writing for the majority:

Respondents have not demonstrated that the Act, as a facial matter, is void for vagueness, or that it imposes an undue burden on a woman's right to abortion based on its overbreadth or lack of a health exemption.

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The Act is open to a proper as-applied challenge in a discrete case. No as-applied challenge need be brought if the prohibition in the Act threatens a woman's life because the Act already contains a life exception.

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There is documented medical disagreement whether the Act's prohibition would ever impose significant health risks on women. ... The question becomes whether the Act can stand when this medical uncertainty persists. The court's precedents instruct that the Act can survive this facial attack.

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In a decision so fraught with emotional consequence some doctors may prefer not to disclose precise details of the means that will be used, confining themselves to the required statement of risks the procedure entails. ... Any number of patients facing imminent surgical procedures would prefer not to hear all details, lest the usual anxiety preceding invasive medical procedures become the more intense. This is likely the case with the abortion procedures here in issue. ... It is, however, precisely this lack of information concerning the way in which the fetus will be killed that is of legitimate concern to the state.

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It is self-evident that a mother who comes to regret her choice to abort must struggle with grief more anguished and sorrow more profound when she learns, only after the event, what she once did not know: that she allowed a doctor to pierce the skull and vacuum the fast-developing brain of her unborn child, a child assuming the human form.

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It is a reasonable inference that a necessary effect of the regulation and the knowledge it conveys will be to encourage some women to carry the infant to full term, thus reducing the absolute number of late-term abortions. The medical profession, furthermore, may find different and less shocking methods to abort the fetus in the second trimester, thereby accommodating legislative demand.

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Physicians are not entitled to ignore regulations that direct them to use reasonable alternative procedures. The law need not give abortion doctors unfettered choice in the course of their medical practice, nor should it elevate their status above other physicians in the medical community.

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Justice Clarence Thomas, concurring with the majority:

I write separately to reiterate my view that the court's abortion jurisprudence, including Casey and Roe v. Wade, has no basis in the Constitution.

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Justice Ruth Bader Ginsburg, writing in dissent:

Today's decision is alarming. It refuses to take Casey and Stenberg seriously. 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.

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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 previous attended state-decreed limitations on a woman's reproductive services.

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For the first time time since Roe, the court blesses a prohibition with no exception safeguarding a woman's health.

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