The Roberts Court (2005–present)


How did the Roberts Court rule with respect to partial-birth abortion?

In one of its most highly anticipated decisions, a sharply divided Roberts Court ruled 5–4 in Gonzales v. Carhart (2007), in favor of a federal law known as the Partial-Birth Abortion Ban Act of 2003, which outlawed a particular type of abortion procedure during the second trimester of pregnancy. In this procedure, called intact dilation and extraction (D&E), the physician pulls the fetus partially outside the cervix before terminating the fetus—often by crushing the skull. It is called partial birth because the physician initiates delivery and then aborts the fetus’s life. The law flatly banned the procedure and critics pointed out that the law did not even contain a health exception to allow use of the procedure if medically necessary for the woman’s health.

The majority of the Court, in an opinion written by Justice Anthony Kennedy, distinguished the federal law from a Nebraska law invalidated by the Rehnquist Court in Stenberg v. Carhart (in both cases, Nebraska physician LeRoy Carhart was one of the challengers to the restrictions on abortion), noting that the federal law “is more specific concerning the instances to which it applies and in this respect more precise in its coverage.”

Cynics said the decision was more about the changed composition of the Court since 2000, noting that Justice Samuel Alito, who replaced the retiring Justice Sandra Day O’Connor, may have accounted for the different ruling.

Both proponents and opponents of the decision recognize the importance of the decision, calling it one of the most significant rulings in the area since Roe v. Wade.


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