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This is truly a landmark event for conservatives. Not only is this a win for the pro-life crowd but it also reaffirms that the appointment of Alito and Roberts to the bench helps realign the courts role within the model as constructionists. In this case it appears that the court does believe that the legislature is fully capable of understanding the meaning of the words they chose and that the court need not interpret it any other way in an effort to construe new law.

The language used and the detail in the remarks by Justice Kennedy are incredibly blunt.

In a decision so fraught with emotional consequence some doctors may prefer not to disclose precise details of the means that will be used, confining themselves to the required statement of risks the procedure entails. From one standpoint this ought not to be surprising. Any number of patients facing imminent surgical procedures would prefer not to hear all details, lest the usual anxiety preceding invasive medical procedures become the more intense. This is likely the case with the abortion procedures here in issue. See, e.g., Nat. Abortion Federation, 330 F. Supp. 2d, at 466, n. 22 (?Most of [the plaintiffs?] experts acknowledged that they do not describe to their patients what [the D&E and intact D&E] procedures entail in clear and precise terms?); see also id., at 479.

It is, however, precisely this lack of information concerning the way in which the fetus will be killed that is of legitimate concern to the State. Casey, supra, at 873 (plurality opinion) (?States are free to enact laws to provide a reasonable framework for a woman to make a decision that has such profound and lasting meaning?). The State has an interest in ensuring so grave a choice is well informed. It is self-evident that a mother who comes to regret her choice to abort must struggle with grief more anguished and sorrow more profound when she learns, only after the event, what she once did not know: that she allowed a doctor to pierce the skull and vacuum the fastdeveloping brain of her unborn child, a child assuming the human form.

It is a reasonable inference that a necessary effect of the 30 GONZALES v. CARHART Opinion of the Court regulation and the knowledge it conveys will be to encourage some women to carry the infant to full term, thus reducing the absolute number of late-term abortions. The medical profession, furthermore, may find different and less shocking methods to abort the fetus in the second trimester, thereby accommodating legislative demand. The State’s interest in respect for life is advanced by the dialogue that better informs the political and legal systems, the medical profession, expectant mothers, and society as a whole of the consequences that follow from a decision to elect a late-term abortion.

It is objected that the standard D&E is in some respects as brutal, if not more, than the intact D&E, so that the legislation accomplishes little. What we have already said, however, shows ample justification for the regulation. Partial-birth abortion, as defined by the Act, differs from a standard D&E because the former occurs when the fetus is partially outside the mother to the point of one of the Act’s anatomical landmarks. It was reasonable for Congress to think that partial-birth abortion, more than standard D&E, “undermines the public?s perception of the appropriate role of a physician during the delivery process, and perverts a process during which life is brought into the world.” Congressional Findings (14)(K), in notes following 18 U. S. C. §1531 (2000 ed., Supp. IV), p. 769. There would be a flaw in this Court’s logic, and an irony in its jurisprudence, were we first to conclude a ban on both D&E and intact D&E was overbroad and then to say it is irrational to ban only intact D&E because that does not proscribe both procedures. In sum, we reject the contention that the congressional purpose of the Act was “to place a substantial obstacle in the path of a woman seeking an abortion.” 505 U. S., at 878 (plurality opinion).

I also should point out that both Thomas and Scalia joined in a concurrence that seriously challenges Roe v. Wade as having no basis in constitutional law!

JUSTICE THOMAS, with whom JUSTICE SCALIA joins, concurring.

I join the Court’s opinion because it accurately applies current jurisprudence, including Planned Parenthood of Southeastern Pa. v. Casey, 505 U. S. 833 (1992). I write separately to reiterate my view that the Court’s abortion jurisprudence, including Casey and Roe v. Wade, 410 U. S. 113 (1973), has no basis in the Constitution. See Casey, supra, at 979 (SCALIA, J., concurring in judgment in part and dissenting in part); Stenberg v. Carhart, 530 U. S. 914, 980?983 (2000) (THOMAS, J., dissenting). I also note that whether the Act constitutes a permissible exercise of Congress’ power under the Commerce Clause is not before the Court. The parties did not raise or brief that issue; it is outside the question presented; and the lower courts did not address it. See Cutter v. Wilkinson, 544 U. S. 709, 727, n. 2 (2005) (THOMAS, J., concurring).

This decision is the first step in a decades long struggle to reverse Roe v. Wade. It underscores the importance of electing conservatives who will do their best to appoint justices that will not use the courts to legislate from the bench.

Previous: Supreme Court Upholds Partial Birth Abortion Ban

Others: Wizbang, La Shawn Barber, The Sandbox, Hot Air, Hyscience, Right Voices, Captain’s Quarters, Outside the Beltway, Sister Toldjah, Power Line, Instapundit, Jammie Wearing Fool, AJ Strata, Texas Rainmaker

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