Ed Kilgore provides an interesting analysis of today's 5 to 4 decision upholding the federal law banning the so-called Partial Birth Abortions:
Ginsburg's opinion for the four dissenters is a model of comprehensive clarity, nailing the majority opinion (penned by that perennial abortion rights weathervane, Anthony Kennedy) for its stealth attacks on the Court's precedents, especially the health exception, the viability standard for scrutiny of abortion restrictions, and the treatment of evidence about the "medical necessity" of various abortion methods.While this may open the way to other state laws that chip away at the forms and conditions for surgical abortions, the inability of the five Justices to agree on a joint rationale for approving it will not make the anti-abortion forces at all happy.
And the incredibly succinct Thomas-Scalia concurrence, which simply and directly attacks Roe, also challenges the majority to come out of the closet and reverse abortion rights.
There's no question that the majority opinion erodes some of the underpinnings of how the federal courts have applied Roe and Casey. And it opens the door to further abortion restrictions.
But on the basics, this decision may prove to be a pyrrhic victory for the anti-choice forces. Every time the Roberts Court validates a technical and largely marginal exception to abortion rights by claiming to respect abortion rights, it will become more difficult to overturn those rights altogether. If, however, a Republican replaces Bush in 2008, and gets another chance to reshape the Court, then I have no doubt future appointees will find a way to get the job done.
In the meantime, all the younger women who did not consider themselves feminists may suddenly realise that their control of their own bodies is under serious attack.
The result is that this decision offers two possible futures. It may be the breakthrough the anti-abortion forces were looking for and lead to doing away with legal abortions (Digby thinks this is the future,) or it may be the high-water mark for the anti-abortionists that activates the opposition into a force that relegates them back to the shadows where they belong.
I suspect the decision regarding which direction the future is going to take will, like many other things, be revealed in the 2008 elections.