Oh Justice Kennedy, How You Have Failed Us.

The decision is in. The Supreme Court today upheld the late-term abortion ban Congress passed after the Court struck down a similar ban a few years ago. Congress, if you remember, passed the bill after making findings that a late term (falsely labeled partial birth by conservatives) abortion was never medically necessary. Which is BS. Of course. Anyone with half a brain knows that.

But apparently not Justice Kennedy, who provided the crucial fifth vote to uphold the ban and who wrote the friggin’ majority opinion. Given that he’s now the swing vote on the court (since O’Connor stepped down), this does not bode well for women’s rights under the Roberts SCOTUS.

Kennedy wrote in the opinion that the opponents of the act ”have not demonstrated that the Act would be unconstitutional in a large fraction of relevant cases.” Which makes little sense to me at first blush. Just because in the majority of cases a law is not unconstitutional as applied means that it does violate the rights of some. Backwards logic if I ever saw it — a failed attempt to justify an obviously political decision that is bound to do damage to the Constitution.

I’m sure Scott will have more.

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update: At least Ginsburg’s got some brains:

Ginsburg, in a lengthy statement, said “the Court’s opinion tolerates, indeed applauds, federal intervention to ban nationwide a procedure found necessary and proper in certain cases by the American College of Obstetricians and Gynecologists. For the first time since Roe, the Court blesses a prohibition with no exception protecting a woman’s health.” She said the federal ban “and the Court’s defense of it cannot be understood as anything other than an effort to chip away at a right declared again and again by this Court — and with increasing comprehension of its centrality to women;s lives. A decision of the character the Court makes today should not have staying power.”

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update 2: Today’s decision brings to bear the real – and devastating – impacts of Justice O’Connor’s retirement.
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(also at AB&B)