Magazine article Newsweek

Battles on Three Fronts

Magazine article Newsweek

Battles on Three Fronts

Article excerpt

Byline: Debra Rosenberg

The Supreme Court's decision to uphold a federal ban on "partial birth" abortion last week set off skirmishes on three battlefields: in politics, doctor's offices and the high court itself. With Samuel Alito now in Sandra Day O'Connor's old seat, conservatives finally had five votes to restrict abortion. Justice Anthony Kennedy--often derided by conservatives as a closet liberal--wrote the vigorous majority opinion upholding the law.

Kennedy has expressed nuanced views on abortion in the past, upholding Roe but disagreeing with a ruling that struck down a Nebraska "partial birth" ban. In last week's opinion he didn't reject the landmark abortion-rights decision, but his language pleased pro-lifers. "Kennedy is very much speaking in the code language of the anti-abortion activists," says David Garrow, a legal historian at the University of Cambridge. The justice used "kill" or "killing" 11 times to refer to abortion and argued that "some women come to regret their choice to abort the infant life they once created and sustained." He also delved into the grisliest medical details of the procedure, quoting at length from a onetime clinic nurse turned pro-lifer. In a sharply worded dissent joined by the court's three other liberals, Justice Ruth Bader Ginsburg called Kennedy's opinion "alarming" and chided him for a paternalistic outlook that demeans women. That wasn't the only cross-court salvo. In a brief but pointed opinion agreeing with Kennedy, Justice Clarence Thomas (joined by Antonin Scalia) chimed in that Roe itself "has no basis in the Constitution." Roberts and Alito didn't sign on; whether they agree is still an open question.

The ruling marked the first time the court has restricted a particular abortion method--and the first time the justices said a law did not need an exception to protect a woman's health. …

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