Supreme Court to Consider Partial Birth Abortion Ban

Facts matter: Sign up for the free Mother Jones Daily newsletter. Support our nonprofit reporting. Subscribe to our print magazine.


The Supreme Court announced today that it will hear a challenge to the Partial Birth Abortion Ban passed by Congress in 2003:

The law, the Partial Birth Abortion Act, was passed in 2003 but was immediately challenged in court and has never taken effect. It was ruled unconstitutional by three federal appeals courts in the last year, in rulings based on a Supreme Court decision in 2000 striking down a similar law passed in Nebraska.

In that case, Stenberg v. Carhart, a 5-to-4 majority that included the now-retired Justice Sandra Day O’Connor found that any abortion ban must include an exception for the health of the woman. Justice Alito was sworn in three weeks ago as Justice O’Connor’s successor after a rancorous confirmation process that focused heavily on the question of abortion. The case accepted by the court today does not involve a challenge to the core ruling that established a legal right to abortion, Roe v. Wade. But it is certain to rekindle questions of whether the court in the post-O’Connor era will be more sympathetic to efforts to limit abortion rights.

The Times muddles the issue a bit here, partly because “partial birth abortion” is a vague term that gets used in a lot of different contexts. Most of the public, I would imagine, thinks that “partial birth abortion” refers to a late-term abortion on an otherwise viable fetus—primarily, an abortion in the third trimester. Opponents of this sort of thing argue that the baby is basically being birthed and then killed, and most people probably have something like this in mind when they tell pollsters that they oppose “partial birth abortion.”

But very often “partial birth abortion” is used instead to refer to intact dilation & extraction (D&X), a medical procedure that’s most often carried out in the second trimester (and sometimes even the first trimester), rather than the third. So laws that ban this procedure can end up banning far, far more than the common understanding of “partial birth abortion.” In fact, as Jessica of Feministing points out, these sorts of laws can be so vague that in 1998, Wisconsin doctors refused to perform any abortions whatsoever after a (totally unconstitutional) D&X ban was passed by the state legislature and upheld by state courts. They just couldn’t figure out what was being banned and what wasn’t, and didn’t want to risk prosecution.

Congress’ 2003 law most resembles the Wisconsin law—mostly notably, the ban isn’t limited to late-term or post-viability abortions—and even goes a bit further, banning procedures besides D&X. It goes far beyond “partial birth.” (Law professor Jack Balkin had a longer discussion of these vagueness problems back in 2003.) Not only that, but it makes no exceptions for the health of the mother, which is, presumably, the main issue the Supreme Court will discuss. But if the law is upheld, it wouldn’t be surprising if, in some states, it had the exact same effect that the Wisconsin partial birth abortion ban had. Not to mention the fact that it will make abortions even more difficult—or outright impossible—for many poorer women, who are often deterred by various state laws from getting access to abortions until later on in their pregnancies. And no doubt that’s exactly what Roberts and Alito are after.

We've never been very good at being conservative.

And usually, that serves us well in doing the ambitious, hard-hitting journalism that you turn to Mother Jones for. But it also means we can't afford to come up short when it comes to scratching together the funds it takes to keep our team firing on all cylinders, and the truth is, we finished our budgeting cycle on June 30 about $100,000 short of our online goal.

This is no time to come up short. It's time to fight like hell, as our namesake would tell us to do, for a democracy where minority rule cannot impose an extreme agenda, where facts matter, and where accountability has a chance at the polls and in the press. If you value our reporting and you can right now, please help us dig out of the $100,000 hole we're starting our new budgeting cycle in with an always-needed and always-appreciated donation today.

payment methods

We've never been very good at being conservative.

And usually, that serves us well in doing the ambitious, hard-hitting journalism that you turn to Mother Jones for. But it also means we can't afford to come up short when it comes to scratching together the funds it takes to keep our team firing on all cylinders, and the truth is, we finished our budgeting cycle on June 30 about $100,000 short of our online goal.

This is no time to come up short. It's time to fight like hell, as our namesake would tell us to do, for a democracy where minority rule cannot impose an extreme agenda, where facts matter, and where accountability has a chance at the polls and in the press. If you value our reporting and you can right now, please help us dig out of the $100,000 hole we're starting our new budgeting cycle in with an always-needed and always-appreciated donation today.

payment methods

We Recommend

Latest

Sign up for our free newsletter

Subscribe to the Mother Jones Daily to have our top stories delivered directly to your inbox.

Get our award-winning magazine

Save big on a full year of investigations, ideas, and insights.

Subscribe

Support our journalism

Help Mother Jones' reporters dig deep with a tax-deductible donation.

Donate