Today the Supreme Court upheld, by a 5-4 vote, the federal partial birth abortion ban. (Opinion here.) Here are a few highlights:
1) Justice Kennedy, who dissented from the Court's 2000 ruling invalidating the Nebraska partial birth abortion ban, writes the majority opinion, purporting to distinguish, rather than overrule, the Nebraska case, Stenberg v. Carhart.
2) The Court does not defer to the findings of Congress, which it acknowledges are factually inaccurate, about the medical necessity of the procedure. (Personal plug: Kennedy's opinion accepts the argument on this point of an amicus brief by a few law profs, including yours truly.)
3) The distinction on which Kennedy principally relies -- the greater specificity of the federal statute -- works for overbreadth and vagueness, but it's not clear that it should make a difference on the core issue: whether a government (state or federal) can ban what many doctors think is the safest way to perform a medical procedure. On that point, Justice Kennedy simply says that where there is medical disagreement, there is no constitutional obstacle to reasonable governmental regulation. This point seems impossible to square with Carhart.
4) Throughout the majority opinion, Justice Kennedy assumes the validity of Planned Parenthood v. Casey, ostensibly because Justices Scalia and Thomas, who dissented in Casey, are joining him. But the assumption also allows CJ Roberts and Justice Alito to remain in the closet about whether they would vote to overrule Roe and Casey if faced with that question directly. They do not join the Thomas/Scalia concurrence reiterating disagreement with Casey.
5) About 2 pages of the slip opinion explain that some women come to regret having abortions, and that there will be fewer such women if they know what an intact D & E (i.e., "partial birth abortion") involves. This is a strange passage because it seems like it would support a requirement of disclosure of a method of abortion, rather than its prohibition.
6) The Court leaves open the possibility of an as-applied challenge to the Act by a woman who really needs an intact D & E, although does not explain how that challenge could possibly be resolved in time to get a ruling before the emergency has passed. The Court notes that she can get the procedure without a court order under the law's life exception, but there is no health exception.