U.S. Supreme Court got it right — there are limits to abortion

On April 18, the U.S. Supreme Court upheld the Partial-Birth Abortion Ban Act that Congress passed in 2003. The 5-4 decision in Gonzales v. Carhart has generated a lot of excited rhetoric and confusing commentary. Five considerations may clarify the ruling.

First, there is no confusion about the abortion procedure that is banned by the act. Partial birth abortion ("PBA," also called "intact D&E" or "D&X" abortion) is performed in mid- and late-pregnancy (after the fetus is at least 16 weeks old, and sometimes much later). The fetus is substantially delivered from the mother's body (either the entire head is out or, in a breach birth, the entire trunk to the navel of the baby is out). Then the doctor stops the delivery and deliberately kills the half-delivered baby by sticking scissors into the base of the head and (usually) suctioning out the brains of the half-delivered child.

Quoting congressional findings, the justices in Gonzales described this abortion procedure as "brutal and inhumane" and having "a disturbing similarity to the killing of a newborn infant." The majority opinion in Gonzales was written by Justice Anthony Kennedy for five justices. It emphasizes that the prior Supreme Court cases protecting abortion have consistently emphasized that the mother's interest in obtaining an abortion must be balanced with society's interest in maintaining respect for human life in the womb. The court agreed that PBA implicates those important interests, and that Congress constitutionally may protect respect for the sanctity of life by banning PBA.

The court got that right. There are limits even to abortion. Second, the dissenting opinion in Gonzales shows how broadly some justices conceive the judicially created right of abortion. Justice Ruth Bader Ginsburg, for the four dissenting justices, asserted that access to abortion, even to brutal, late-term abortion, is necessary to protect the right of women "to make ... autonomous choice(s)" and to "shape" their own "destiny." In other words, the dissenters viewed PBA not for what it is, or how it is done, or how it effects society, but as a symbol of women having access to abortions whenever and however they want.

Despite the very small number of PBA abortions (fewer than one-half of one percent of all abortions), despite the availability of alternative procedures and regardless of the unique, sanctity-of-life concerns implicated by PBA, the four dissenters insisted that the right to choose any kind of abortion a woman wants is so absolute, so essential, that even PBA cannot be banned. They think the right of abortion is nearly unlimitable.