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Partial-birth abortion ban upheld

The Court, in a 5-4 ruling, has upheld the partial-birth abortion ban.  Justice Kennedy wrote the majority opinion.  The Court did not overrule Stenberg, but found that the federal statute at issue here is narrower than the Nebraska statute.  The Court also ruled that these facial challenges to the statute (as opposed to as-applied challenges) should never have been heard.  An excerpt:

[The State, from the] inception of the pregnancy, maintains its own regulatory interest in protecting the life of the fetus that may become a child, [and this] cannot be set at naught by interpreting Casey's requirement of a health exception so it becomes tantamount to allowing a doctor to choose the abortion method he or she might prefer. Where it has a rational basis to act, and it does not impose an undue burden, the State may use its regulatory power to bar certain procedures and substitute others, all in furtherance of its legitimate interests in regulating the medical profession in order to promote respect for life, including life of the unborn.

A welcome ruling from Justice Kennedy, to be sure.  Not to say that there isn't still a whiff of his "sweet mystery of life" reluctance to state obvious truths as truths.  Consider this:"No one would dispute that, for many, D&E [dilation and evacuation] is a procedure itself laden with the power to devalue human life."  Now I know that many people disagree over whether the mother's interests should outweigh the state's concerns with the D&E procedure's "devaluing" of human life, but is it really beyond the pale to recognize, as a matter of fact, that the procedure is "laden with the power to devalue human life?"

From Mirror of Justice posted 2007-04-18.

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