Justice Anthony M. Kennedy wrote for the majority in the first-ever decision by the Court to uphold a total ban on a specific abortion procedure -- prompting the dissenters to argue that the Court was walking away from the defense of abortion rights that it had made since the original Roe v. Wade decision in 1973 recognized a constitutional right to end pregnancy medically. Roe v. Wade was not overturned by the new ruling, as some filings before the Court had urged.

The Court said that it was upholding the law as written -- that is, its facial language. It said that the lawsuits challenging the law faciallly should not have been allowed in court "in the first instance." The proper way to make a challenge, if an abortion ban is claimed to harm a woman's right to abortion, is through an as-applied claim, Kennedy wrote. His opinion said that courts could consider such claims "in discrete and well-defined instances" where "a condition has or is likely to occur in which the procedure prohibited by the Act must be used."

I think the court may be trying to remove abortion from federal politics.

Jurisprudence currently allows for something quite similar to European abortion policies: early trimester abortions are allowed, late trimester abortions are often banned, but there are exceptions in the case of the health of the mother. In spite of this, there are no bans on any type of abortion presently. This is because the abortion issue is more of a political football than something legislatures are truely interested in.

The current wedge has been the health of the mother. Conservatives argue for abortion bans which do not include such an exception. They know that liberals won't accept such a rule, and that the courts won't accept such a rule, and this creates strife which helps them motivate people to get to the polls.

Ironically, the court has handed conservatives exactly what they don't need, which is a victory. They banned something, and the ban stuck. But the majority states that the ban will not continue to stick if challengers provide actual circumstances in which a mother's life is threatened. This is a dangerous move, as it may actually involve a death. However, it changes the legislative playing field. Abortion bans are going to have a heath exception regardless of whether its written into the law. This means that conservatives can pass late trimester abortion bans, and in fact that liberals can sign on to them, without being concerned about the health issue.

Thomas and Scalia go further, stating that they also think this ban may fall to a commerce clause challenge.

The result is that the abortion issue gets removed from the federal political sphere. Federal Republican candidates cannot argue that you need to vote for them in order to ban abortions, because they don't have that power, and because the justices on the court don't need to be replaced in order for that to happen.... [ Read More (0.2k in body) ]