WASHINGTON — The Supreme Court changed course on abortion Wednesday, upholding a national ban on a midterm method of ending pregnancies. The decision clears the way for states to pass new laws designed to discourage women from having abortions.
In a 5-4 ruling applauded by antiabortion forces, the court said the "government has a legitimate and substantial interest in preserving and promoting fetal life." In 2000, the court, also by a 5-4 margin, struck down a nearly identical state law on the grounds that it could force some women to undergo riskier surgery during the fourth or fifth month of pregnancy. But the retirement of Justice Sandra Day O'Connor in 2005 and President Bush's appointment of Samuel A. Alito Jr. to succeed her tipped the balance the other way.
It was the first time the court upheld a ban on an abortion procedure. Though Wednesday's opinion does not overturn Roe vs. Wade, the 1973 decision establishing a constitutional right to abortion, the majority said it was prepared to uphold new restrictions on doctors who perform them and women who seek them.
Justice Anthony M. Kennedy, speaking for the court, said that the government may not forbid abortion outright but that it "may use its voice and its regulatory authority" to dissuade women from ending pregnancies. The ban on what opponents call "partial-birth" abortions will "encourage some women to carry the infant to full term, thus reducing the absolute number" of such abortions, he added.
Chief Justice John G. Roberts Jr. and Justices Antonin Scalia, Clarence Thomas and Alito joined Kennedy's opinion. In a separate statement, Thomas and Scalia said they would vote to overrule Roe vs. Wade entirely.
The decision is likely to elevate the abortion issue in the 2008 presidential campaigns. Two of the court's strongest supporters of the right to abortion are also its oldest: John Paul Stevens will be 87 on Friday, and Ruth Bader Ginsburg is 74. The next president might have to nominate one or more new justices.
Ginsburg, the court's only woman, called Wednesday's decision "alarming."
It "cannot be understood as anything other than an effort to chip away at a right declared again and again by this court," she said.
She said this dispute was about how, not whether, abortions would be performed during the second trimester. Despite Kennedy's talk of "promoting fetal life," the ban on the procedure "targets only a method of abortion," she said. "The woman may abort the fetus, so long as her doctor uses another method, one her doctor judges less safe for her."
She also called the decision demeaning to women. It "pretends" to protect them "by denying them any choice in the matter," she said.
Stevens and Justices David H. Souter and Stephen G. Breyer joined her dissent.
The ruling culminates a 12-year campaign by the National Right to Life Committee to outlaw the procedure, which its leaders were the first to dub "partial-birth" abortion. They said the procedure was akin to "infanticide" because the fetus is killed after being extracted partly from the uterus.
Bush praised the decision as a step toward "protecting human dignity and upholding the sanctity of human life." Congress enacted the ban and he signed it into law four years ago, but it was struck down as unconstitutional by three lower courts.
Abortion rights advocates voiced outrage over Wednesday's decision. It "is a stunning assault on women's health and the expertise of doctors who care for them," said Nancy Northup of the Center for Reproductive Rights. "This court believes that members of Congress -- not doctors -- are in the best position to make medical decisions for their patients."
In one sense, the ruling may have more symbolic than practical significance. By most estimates, the disputed procedure is used in fewer than 5,000 of the more than 1.3 million abortions performed nationwide each year.
However, the legal battle turned on the question of whether a woman and her doctor, or elected lawmakers, should decide on abortion.
Most abortions -- 85% to 90% -- are done in the first three months of pregnancy. In those cases, the fetus is removed through a suction tube.
Later in pregnancy, however, some form of surgery is required. Most doctors give the woman anesthesia and use instruments to remove the fetus in pieces. This procedure is known as dilation and evacuation, or D&E, and remains legal.
Some doctors who perform second-term abortions said it was safer to remove the fetus intact because that method is less likely to expose the woman to injury, bleeding or infection. Usually, doctors collapse the fetus' skull, or drain its content, to permit its removal. This method is known as dilation and extraction, or D&X.
Congress criminalized D&X in the Partial Birth Abortion Ban Act of 2003. The law permits doctors to use the procedure if it is necessary to save the woman's life. However, there is no exception for instances where doctors say it is needed to preserve her health.
