Abortion Ruling Signals Historic Shift

The Supreme Court's landmark abortion decision this week represents a seismic shift that retools the debate over abortion and is certain to encourage more restrictions and regulations in states across the country.

Just days after the decision, lawmakers in states such as Alabama already have introduced tough new bills that would restrict the procedure. Others are expected to follow South Carolina, which is now considering legislation that would require women seeking abortions to first view ultrasound images of their fetuses.

"We are going to see a whole new onslaught of restrictions on abortions coming out of this decision," said Nancy Northup, president of the Center for Reproductive Rights, which represented one of the abortion doctors in the case.

Beyond the abortion issue, the blockbuster decision also signals the beginning of the new Court led by Chief Justice John Roberts. It likely will bolster Roberts' efforts, which he's discussed publicly, to convince his colleagues to approach cases in a more restrained way.

On its face, the ruling seemed narrow. The Court upheld a bipartisan federal law, the Partial Birth Abortion Ban Act, which prohibited one rarely used abortion procedure typically done in the second trimester. The vast majority of the 1.3 million abortions a year -- 85 to 90 percent -- are done in the first trimester.

Congress passed the law in 2003, after the Court struck down similar state laws banning this second-trimester abortion procedure in 2000. But Justice Sandra Day O'Connor was on the bench in the 2000, and she provided the key fifth vote for the liberal justices who believed the state laws were unconstitutional.

A change in the Court's makeup -- Justice Samuel Alito replacing O'Connor -- made the difference this time.

In upholding the federal law the Court, for the first time since Roe v. Wade, said the government could ban a substantive abortion procedure. But the decision was about much more than banning a specific procedure.

"This is a huge shift in the whole abortion issue," said Jay Sekulow, chief counsel of the American Center for Law and Justice. "This is the most significant victory the pro-life has ever had."

That's because the language in Justice Anthony Kennedy's majority opinion made clear this newly constituted Court believes previous decisions undervalued the government's interest in promoting and protecting the life of the unborn. As Kennedy put it, the government "has an interest in ensuring so grave a choice is well informed."

"The government may use its voice and its regulatory authority to show its profound respect for the life within the woman," Kennedy wrote in his decision, joined by Roberts, Alito and Justices Antonin Scalia and Clarence Thomas.

As Kennedy emphasized, states have a moral role in the debate and can actively discourage abortion. That means South Carolina's proposed law requiring ultrasounds would likely survive a legal challenge, as would other proposed statutes addressing fetal pain.

"It's a momentum shift, and a significant momentum shift, because what it did was recognize the value and the humanity of the unborn child," Sekulow said of the decision.

That's not to say this new Supreme Court is poised to overturn Roe v. Wade, the landmark 1973 decision that said a woman had a constitutional right to abortion. The votes aren't there.

Only two justices on the Court, Scalia and Thomas, have said they want to overturn Roe v. Wade. Roberts and Alito have not divulged their views, and even if they believed Roe should be overturned, the Court still is one vote short. Kennedy has refused to overturn Roe, and his majority decision Wednesday doesn't suggest his views have changed on the basic constitutional right.

Instead, Kennedy's decision emphasizes that abortion is a moral choice, fraught with consequences, and that the government can step in and pass laws to limit it.

Beyond the abortion issue, the decision also speaks volumes about the new Roberts Court. It's a more conservative Court, to be sure, with Alito replacing swing Justice O'Connor, who frequently sided with liberals on social issues.

But the decision this week also was critical to Roberts' broader efforts to move the Court in a more conservative and restrained direction in other cases.

The Court is now in flux, with a new lineup of justices leading to new coalitions and voting blocs. Most have predicted that Kennedy would be the key player, replacing O'Connor as the swing vote that will determine the Court's direction.

Some already had begun calling it the Kennedy Court, just as people used to say the old Court, led by Chief Justice William Rehnquist, was the O'Connor Court.

But this week's "partial birth" abortion decision may instead represent the beginning of the Roberts Court.

The decision it makes clear that Kennedy's vote is not going to be up for grabs nearly as often as O'Connor's was. He may vote with liberals on some cases, as in the recent decision rejecting the Environmental Protection Agency's claim it that the lacked authority to regulate greenhouse gases from new cars and trucks.

But the abortion decision makes clear Kennedy will side with conservatives more than O'Connor did. Kennedy, for example, is likely to provide the fifth vote for conservatives in the Court's other big case this term involving school busing.

All that gives Roberts a chance to urge his fellow justices to approach cases in a more restrained and coherent way. Roberts now has hard evidence that the liberals -- in the battle for Kennedy -- will lose more often than not.

The abortion decision bolsters Roberts' case that the justices, instead of battling for Kennedy's vote and swinging for the fences in the big cases, should take a more restrained approach across the board.

If they go along, it will greatly minimize Kennedy's role.