Notre Dame ReSource: Garnett discusses Supreme Court decision on abortion ban

Author: Michael O. Garvey


Todays Supreme Court decision upholding the 2003 Partial Birth Abortion Ban Act isa narrow, but important one,according to Richard W. Garnett, associate professor in theNotre DameLawSchool.

Writing for the majority in the 5-4 ruling Justice Anthony Kennedy said that opponents of the banhave 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, their2000 decision, Stenberg v. Carhart, which struck downNebraska’s differently worded partial-birth-abortion ban.

Unlike the earlier decision, today’s ruling respects the views of the overwhelming number of Americanspro-life and pro-choice alikewho 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 773-702-9566 or

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