Crap.
Maybe too much info for here, but I am very close to one of the plaintiffs in one of the cases.
I was at the oral argument for those two cases.
Crap.
Thanks a lot, Justice Kennedy, for changing your mind since 2000.
Also, banning a particular method on the grounds it doesn't create a problem because it's so rare? Um, what, so since the ban is only in use about 10% of the time it's only 10% unconstitutional to ban it and that's OK? Fuck.
2 - I also first read the article as Kennedy changing his mind but then realized that I think he voted to uphold the law banning the procedure in the previous case. Since the law was overturned, his dissent would have been in favor of banning the procedure.
Activist judges!!! Seriously, this is outcome based jurisprudence- decide what you want and build your decision around it:
1) Kennedy:
The opponents of the act "have not demonstrated that the Act would be unconstitutional in a large fraction of relevant cases."So we do constitutional rights by the majority of cases now instead of considering all cases?
"The Republican-controlled Congress responded in 2003 by passing a federal law that asserted the procedure is gruesome, inhumane and never medically necessary to preserve a woman's health. That statement was designed to overcome the health exception to restrictions that the court has demanded in abortion cases."So apparently if Congress states something is so, regardless of what experts say, it is so. We make our own reality.
3: Whoops, my bad. Thanks for the correction, though. So, nevermind. Still, the "it's OK to ban this since it's not unconstitutional in most cases" thing is driving me up the wall. IANAL, of course. Maybe that's the going rate.
They should've challenged the ban on the grounds of the commerce clause. That always seems to work.
The not unconstitutional in most cases point is ridiculous. 4(2) I understand, as a division of powers issue (the courts not viewing themselves as better able to make factual judgments/evaluate expert opinion than Congress). It's probably a little too much deference in this case, however.
The maddening part is that Congress can make whatever factual findings it wants no matter what the actual facts are.
The medical evidence in this case was overwhelmingly opposed to Congress's finding. Even the government's medical witnesses didnt help them much.
ARAGGRGAGRGARG
The problem with the deference in this case is that nothing changed, factually, from their previous decision that required a health exemption- Congress just said, "We don't need no stinkin' health exemption," and they now say, "Ok!"
Of course, what really changed is the membership of the court, so let's stop kidding ourselves that this is based on legal reasoning and not politics.
Okay, amending 7:
It's probably a little too much deference in this case, however.
While I would have preferred a different outcome, this decision isn't terrible for abortion rights insofar as Justice Kennedy spends much of his opinion reaffirming Roe and Casey. The case may, bizarely, come down to this assertion by Kennedy: "If the intact D&E procedure is truly necessary in some circumstances, it appears likely an injection that kills the fetus is an alternative under the Act that allows the doctor to perform the procedure." In other words, doctors can still perform the procedure, they just have to kill the fetus first.
Well, fuck. Incidentally, Republicans who are sane small-business small-government types: you're sane, but this is why your party shouldn't get to play with the government any more.
IANAlawyer, but it seems these congressional "findings" are often pivotal in courts' deciding whether a law meets whatever constitutional test applies -- "rational basis" or whatever.
The headline should read "Women's Health Issues decided by Congress Not Their Doctors."
A bad decision, but hopefully a sideshow in the bigger abortion picture. It's a rare procedure, and I am a bit skeptical that there are really cases where *no* other method is available.
The potential problem is Congressional micromanagement of How To Perform An Abortion, a.k.a. What Crazy Shit Will They Think Up Next?
I predict that Kennedy had a visceral, if you will, objection to this procedure, & that he'll be less inclined to join the Dark Side of the Court on other such issues.
Notturtle:
The Justices were clearly aware that this wouldnt result in fewer abortions.
The only result is that Congress has decided that the safer method is not safer.
The abortion will still be performed. Just not the way the doctor feels is best. Try being the doctor or woman in that situation.
14: Yeah, as that former kind of Republican, I disapprove of this decision.
14: Republicans who are sane small-business small-government types—also note that the Republican government hasn't made your government smaller or your businesses better. There's the war we'll pay for forever, the torture we'll never wash off our hands, and the civil rights that are less strong than they were before.
To some moderate Republicans, this is preaching to the choir, but it has to be noted since we've got years of these kinds of decisions ahead.
Next up:
"Congress decides Broken Legs May Only Be Treated with Prayer"
Oh wait, only forgot to limit it to a female issue.
18: agreed. I just think it is important to note that Kennedy, the critical vote at this point, spent alot of time reaffirming the principles of abortion rights. Also notable is that Alito and Roberts did not join Scalia and Thomas in the concurrence arguing that current abortion rights should be overturned.
You're sapping America's will, smasher. Cut it out.
Also notable is that Alito and Roberts did not join Scalia and Thomas in the concurrence arguing that current abortion rights should be overturned.
Interesting. If those two & Kennedy have an "enough is enough" attitude on abortion & feel like a line should be drawn in the sand about where things are now, then we are still left with a pretty open abortion regime, all things considered. I wonder if that's how Roberts & Alito feel.
This decision also seems to show that only with a concerted, dishonest effort in Congress can you put together even the weakest abortion ban, and it will only pass constitutional muster if you make sure it doesn't apply in any actual cases.
It would be worrisome if not for the new Dem congress, but it seems that for now we have kicked this can well down the road.
Okay, one more thing & back to work: for you non-lawyers, this was a *facial* challenge to the statute. Those are the hardest to win -- you look at the mere language & argue that it's unconstitutional.
Take a look at SCOTUSBlog's analysis:
Kennedy said the Court was assuming that the federal ban would be unconstitutional "if it subjected women to significant health risks." He added, however, that "safe medical options are available...The Act allows...a commonly used and generally accepted method, so it does not construct a substantial obstacle to the abortion right." His opinion noted that the Bush Administration "has acknowledged that pre-enforcement, as-applied challenges to the Act can be maintained."
In other words, we are going to see this statute back in court; it ain't over yet.
But Kennedy's citation of Marshall v. U.S. (about giving Congress lots of latitude in areas where there's medical uncertainty) kind of lowers the bar for an as-applied defense, doesn't it? The government would just have to show that there is medical controversy about whether partial-birth is ever necessary. And surely it could find some pro-life doctors and researchers who have argued this point.
This is bad news, but, as pointed out above, not the worst news.
It would be comforting to rationalize this and say "They've overplayed their hand a few to many times, the pendulum will swing back the other way pretty soon." But I don't think that's how it really works. There's no substitute -- on this issue or any other -- for good, old-fashioned shoe-leather organizing. If this ruling is a problem for you (and it sounds as though that is the case for the majority of Unfoggers so far), then get out there and do something about it! Whether it's issue-based activism, or working for a political party, or assisting people who are often intimidated or rationalized away from the polls in voting, there's much work to be done.
This is the kind of thing that invigorates and energizes the far right with headcount, cash and media attention. If you oppose the right, it's important to make it do the same for you. If the prospect of 100,000 women being forced to bear children is not acceptable to you, take some action, at whatever level you are able to, and try to speed the progress of that pendulum in its arc.
DaveB:
Such a cynical attitude. Where would the government find such doctors or researchers willing to overlook the actual facts in order to promote their political goal?
Hasnt global warming taught you anything? These people cannot be bought!
"show that there is medical controversy" means "find people saying things"? I don't like that precedent.
Please don't die, Justice Stevens, please don't die. Please stay safe and hearty, Justice Ginzberg.
Maybe "hearty" s/b "well-rested".
I've seen her at a party in DC and she's quite frail looking. But probably has been for years.
Dems control congress, and seem to have grown something of a backbone. Even if Stevens and Ginsburg both dropped dead today, I bet Bush wouldn't get even one new justice confirmed.
If the two of them dropped dead today, it would be in Bush's best interest not to be able to replace them. He'd just get a 5-2 or 4-3 majority on everything, while blaming Democrats for obstructing justice.
Miers doesnt look so bad at this point.
Miers doesnt look so bad at this point.
There's a reason all the opposition to her came from the right.
Kennedy was the swing vote on Gore-Bush too. If you want an esoteric inside-baseball villain, Kennedy is the guy you want to hate on.
39, 40: True, but bear in mind that she's a toady of the first order, and that how she would have ruled on this sort of thing was far from certain.
John, by "Kennedy was the swing vote" I presume you mean the other four in the majority are such complete crazies that you never even had a hope that they might vote the other way. Seems odd to want to focus the hate on Kennedy on that basis.
Kennedy did essentially the same thing to the Gitmo prisoners 2 weeks ago. Fine: you want as applied, we'll give you as applied.
I'd think the doctor-plaintiffs in Carhart can find a reasonably good case in short order. They'll have to bring it on a very expedited schedule, and should have the upper hand in controlling the factual presentation.
That's why I called it insider baseball.
But it's not peculiar at all. The wacko fringe of the electorate is about 30-35% of the population. They're only dangerous because they somehow are able to get another 16% on their side: "moderates, independents, and rational conservatives". Kennedy does not have the bad reputation the others have, but at key moments he pulls them through.
You can say the same about all the moderate Republicans in the Senate. When the chips are down, they support the Republican leadership. They're the ones who made the difference between 2000 and 2006. They made things happen.
"I'd think the doctor-plaintiffs in Carhart can find a reasonably good case in short order. They'll have to bring it on a very expedited schedule, and should have the upper hand in controlling the factual presentation."
Want to take on another pro bono case?
This is a pretty terrible thing to say, but, hell, I'll say it anyway. Is it possible that we have enough Catholics on the Supreme Courts now and don't need to appoint any more?
Is it possible that we have enough Catholics on the Supreme Courts now and don't need to appoint any more?
Hm. If the Pope threatened to excommunicate justices who failed to vote against abortion, would the Roman Catholics on the Court have to recuse?
You do not get to be Pope without a fair amount of political savvy.
Whoa... I just realized the five Catholics on the bench were the 5-justice majority here. I don't know why I thought they were more split than that. For some reason I thought Stevens or Breyer was Catholic, and that Thomas wasn't.
If the Pope threatened to excommunicate justices who failed to vote against abortion...
It's been my impression that this pope, and the one before him, made some rather pointed statements about the need for politicians to protect a traditional definition of marriage. I really doubt that the pope would make a clear threat---since that would seriously endanger his modern position as spiritual, not temporal leader---but the Vatican's beliefs on the matter are certainly well understood.
50.--Yeah, I wandered around the justices' biographies on Wikipedia before I posted 47. I would have thought that anyone named "John Paul" was Catholic, but Stevens's bio page didn't mention anything about his religion. I had also forgotten about Thomas's being Catholic.
Our Catholic association with "John Paul" dates from the year of their lord 1978.
Way back at 20: agreed, but something to bear in mind when thinking about voting for a nice, sane Republican. The candidate may be a sane moderate; his party is full of loons. Loons should not be allowed anywhere near the courts.
This ruling is flat-out ridiculous on straightforward 'wtf' grounds. Put on your pro-life hat, even; the court just said that it's okay to dismember the fetus, just that this particualr procedure is evil and gruesome. What. the. fucking. hell. Do they think doctors are doing this for fun? That women pick this kind of abortion for the extra-special carnage?
And I'm embarassed as hell that those in favor of it are Catholic, though I'm mostly annoyed because we're supposed to be better at philosophy and law than this.
Or if he were a younger man, the child of Beatlemaniax.
we do constitutional rights by the majority of cases now instead of considering all cases?
Yeah, that's what pisses me off, too. That and the implicit assertion that it's constitutional to pat women on the heads and tell them that they don't really know what's good for them, the silly dears.
JM, you can rant about the five Catholics on the SCOTUS all you want. Motherfuckers.
Also, a question for Will (or anyone else who knows the answer): the law that was upheld is the "Partial Birth Abortion Act." Given that PBA isn't an actual medical term and all, and with the Kennedy statement cited in 13, is it actually possible that all this decision's done is led to a probable future case in which a brave doctor performs a D&X (with or without first inserting one more potentially dangerous object, i.e., a needle to kill the fetus by injecting it with something that stops its heart or the like, into the woman's womb) and then goes to court arguing that they didn't perform a PBA, or that they didn't perform the procedure *exactly* as described in this specific law, and therefore it was legal?
58: The bill defines pretty specifically what procedure is being banned:
partial-birth abortion [pdf]--an abortion in which a physician deliberately and intentionally vaginally delivers a living, unborn child's body until either the entire baby's head is outside the body of the mother, or any part of the baby's trunk past the navel is outside the body of the mother and only the head remains inside the womb, for the purpose of performing an overt act (usually the puncturing of the back of the child's skull and removing the baby's brains) that the person knows will kill the partially delivered infant, performs this act, and then completes delivery of the dead infant
So yes, if the fetus is dead before it's extracted, it's still legal.
58: If the baby's dead before it's 'born', it's legal. That's what makes this ruling so weird.
B, I'm not will and I don't know the answer, but despite that: the answer depends on the definition of the prohibited activity in the act. The title of the law doesn't mean jack. Somewhere in the text it must say something like "it is unlawful for medical professionals to do [x]." [x] will be specificly defined activities, not something amorphous like "perform partial-birth abortions." I'm sure [x] is defined broadly enough to cover normal D&X procedures, so doctors can no longer perform those. But you're right that a doctor performing a procedure that's not exactly withing the statutes specifically defined prohibited activity would be in the clear.
Look at that, other posted better comments, faster. Story of my life.
Actually MattF, one of the problems is that the definition does not provide a lot of comfort for the doctors.
This bill always was about PR, nothing more, nothing less. This bill isn't about reducing the number of abortions. It is just about making headlines to use against Democratic candidates.
BitchPHd, you are correct that there would be several possible defenses in any criminal trial. If I recall, Roberts appeared focused on the intent part of the statute. I'd have to go back and look at the transcript though.
58 sounds to me like, potentially, you could have an argument that a "deliberate act" that the doctor knows will "kill" the fetus--e.g., a heart-stopping injection--could be prohibited if the head and/or upper part of the trunk is past the cervix.
Obviously IANA MD, but if you *were* going to insert a needle into the womb of, say, a woman whose fetus was seriously hydrocephalic, I can see why you'd want to get the body out of the way first, or perhaps have part of it already in the vaginal canal and therefore easier to see. (God knows you wouldn't want to miss with the injection and kill the woman.) I don't know if it's really possible to kill a fetus inside the womb that way. Though I suppose there's got to be some way to do it.
And this does or does not have a life of the mother exemption? (It's a dumb ruling either way.) Working on the assumption that the doctors usually aren't people who like gruesome procedures, I'm guessing that most of the use for this now-banned procedure would be an emergency of some sort... so... jesus.
63: Let's require Roberts to read his Wimsatt and Foucault, then.
Though I suppose there's got to be some way to do it.
There's saline instillation, but they don't like that method so much either.
65: Life, yes. Health, no.
So, for instance, the possibility that a given physician would think that intact D&X would be safer than D&E (where you cut up the fetus inside the womb) because the latter creates bone fragments that could perforate the uterus, is irrelevant.
The other issue here is that actually D&X is performed sometimes b/c a woman with a wanted pregnancy finds it's not viable, and wants to be able to see and hold the fetus. D&X gets used in those cases so that there's actually a whole fetus, rather than a pile of parts. Again, not a question of the woman's life or death, but kind of shitty of them to decide that she's going to be denied that decision just because it ooks them out.
67: That and it's more dangerous to the woman than surgical procedures.
I'm a sick twisted SOB, and I can't wait for a doctor to testify that "In order to comply with the PBA ban, I inserted my hand into the vaginal canal, gripped the head of the fetus firmly, and twisted approximately 180 degrees, feeling a definite snap."
(64 -> 59, "past the cervix" does not to me mean the same thing as "outside the body of the mother".)
I'm a sick, twisted SOB, and the more abortion rights come under attack, the more open-minded I become about infanticide. I'm seriously becoming sort of okay with babies being left out on mountains. Up until six months: I'm not a monster.
Also, sure it's legal now to do an intact D&X if the fetus is already dead, meaning that the doctor can inject the fetus with saline or something before performing the procedure, but how much you want to bet we see another law preventing that not too soon from now?
70: Ah, thank you. I had misread the second "outside the body of the mother" as "into the vaginal canal."
"So, for instance, the possibility that a given physician would think that intact D&X would be safer than D&E (where you cut up the fetus inside the womb) because the latter creates bone fragments that could perforate the uterus, is irrelevant."
Correct. But who really cares about a doctor perforating the uterus of someone not your wife, gf, or daughter?
If you want to read the brief, go to:
http://reproductiverights.org/pdf/RespondentsBrief8.10.pdf
Page 11 addresses some of the topics raised her
Read in particular the past about banning non-intact D&E's as well as intact D&Es.
72: I believe that such a law would still be found unconstitutional.
And, oh, thank you ever so very much,
Ralph Nader.
My father was an MD in Catholic hospitals during the 50s and 60s. The practice at that time when birth would endanger the life of the mother was to assume that the baby was already dead. It was a reactionary time and abortion was totally forbidden, but we seem to be moving into an even worse place, where the baby's life trumps that of the mother, or even where both will die because an emergency procedure was forbidden.