May 2007
Garnett discusses Supreme Court decision on abortion ban
By: Gail Hinchion Mancini
The Supreme Court decision upholding the 2003 Partial Birth Abortion Ban Act is “a narrow, but important one,” according to Richard W. Garnett, associate professor in the Notre Dame Law School.
Writing for the majority in the 5-4 ruling Justice Anthony Kennedy said that opponents of the ban “have not demonstrated that the Act would be unconstitutional in a large fraction of relevant cases.”
“Justice Kennedy's opinion for the majority does not change the court's basic position with respect to abortion,” Garnett said, “but it does make clear that the court's precedents permit reasonable, careful regulations of abortion, in order to promote the state's valid interest in protecting what Justice Kennedy called the government's ‘interest in respect for life.’ The justices distinguished, but did not overrule, their 2000 decision, Stenberg v. Carhart, which struck down Nebraska's differently worded partial-birth-abortion ban.
“Unlike the earlier decision, today's ruling respects the views of the overwhelming number of Americans—pro-life and pro-choice alike—who concluded that partial-birth-abortion is a procedure that a decent and humane society need not permit,” Garnett said. “In this sense, the decision is consistent with the view, expressed by Chief Justice Roberts during his confirmation hearings, that federal judges should be restrained, and not take it on themselves to remove controversial debates from public discourse.”
Contact Richard W. Garnett at rgarnett@uchicago.edu