Gonzales v. Carhart
Today, April 18th 2007, the US Supreme Court upheld, from my knowledge for the first time, any state or federal law that banned a particular form of or abortion procedure not for a minor.
In Planned Parenthood v. Casey 505 U. S. 833 (1992), the Supreme Court reaffirmed the general right to an abortion as set out in Roe v. Wade but upheld a few procedural requirements on abortion... such as a 24 hour waiting period. The Supreme Court also upheld a parental notification requirement for any girl under the age of 18 to receive an abortion. Today, however, the Supreme Court (5-4 of course) upheld the Partial-Birth Abortion Act of 2003.
If memory serves I discussed this piece of legislation back when it had recently passed congress in this very journal. The act makes it criminal when (I'm quoting from the released opinion quoting the statute):
"Any physician who, in or affecting interstate or foreign commerce, knowingly performs a partial-birth abortion and thereby kills a human fetus shall be fined under this title or imprisoned not more than 2years, or both. This subsection does not apply to a partial-birth abortion that is necessary to save the life of a mother whose life is endangered by a physical disorder, physical illness, or physical injury, including a life-endangering physical condition caused by or arising from the pregnancy itself."
Partial Birth Abortion is defined as:
"the term ‘partial-birth abortion’ means an abortion in which the person performing the abortion-“
(A) deliberately and intentionally vaginally delivers a living fetus until, in the case of a head-first presentation, the entire fetal head is outside the body of the mother, or, in the case of breech presentation, any part of the fetal trunk past the navel is outside the body of the mother, for the purpose of performing an overt act that the person knows will kill the partially delivered living fetus; and
“(B) performs the overt act, other than completion of delivery, that kills the partially delivered living fetus"
There are also provisions in the bill that allow a charged physician to halt the prosecution briefly to go before a medical review board to determine the medical necessity of an abortion and there is an explicit section stating that a pregnant woman who seeks an illegal abortion cannot be prosecuted.
Long story short... this is a narrowly tailored law. Justice Anthony Kennedy went out of his way to correctly mention how certain forms of Dilation and extraction, such as one where the fetus is basically dismembered in the uterus and extracted piecemeal, are not covered by this law.
The Congress did not pass this law in an attempt to ban a large number of abortion procedures. The law was a test case to see if any restriction of abortions that could occur in the 2nd trimester would be upheld if a vague, catch-all "health of the mother" clause was not present. The Supreme Court has decided that it will not stop legislatures from acting when there is disagreement within the medical community as to the medical repercussions of the lack of such a clause. It is silly to think a single group of doctors could clog the jurisprudence of the Courts. When there is disagreement over facts it is the proper realm of the policy makers in our system to parse out the details... not the courts.
It should be made clear that the current Supreme Court will not overturn Roe. Even if both Roberts and Alito would vote to do so (by no means a sure thing) Kennedy would uphold, at least, 1st trimester abortions as he did in 1992.
It should also be noted that it is likely that this same Supreme Court would uphold other restrictions on abortion. Kennedy dissented in the Stenberg case 6 years ago that would have banned most abortion procedures used (according to those who voted to strike down the statute) after the 4 month of pregnancy.
The case is not a landmark case because it upheld a sweeping law. It is an important case because it is just about the only time the Supreme Court has upheld a ban on a procedure. According to the language of Roe its progeny the government has the right to regulate all 3rd trimester abortions and some 2nd trimester abortions... but until now those were hollow pronouncements.
Another interesting development was that Justices Scalia & Thomas submitted a concurring opinion in which they said that there is no constitutional right to an abortion. The two new justices did not join this opinion. That does not necessarily mean they agree or disagree since Judgers are only supposed to address the issues directly before them. However, that extra opinion reminded me of Justices Brennan and Marshall taking turns writing opinions in the 80's stating that they believed the death penalty to be unconstitutional out of principle.
This entire entry, however, should not be needed. The problem with abortion is that it is a public policy debate that has no basis in the constitution. Abortion before "quickening" was not illegal in the US before the Victorian era as a result of English Common Law. The writers of the 14th Amendment knew darn well what abortion was and did not write it into the Constitution. The issue is not one of new technology or circumstance beyond the imagination of those who drafted the sacred texts.
In the late 18th century states began to make abortions illegal. In 1968 New York legalized most abortions by act of the legislature. Various states had different laws. Despite my strong views on the subject I know there are debatable positions on both sides. This is exactly the kind of policy debate that should take place in a democratic country. To declare something to magically appear in the constitution stifles debate and is fundamentally contrary to the idea of popular sovereignty. It is equally offensive to the Constitution to declare that abortion must be legal as it would be for the Supreme Court to declare that abortion must be illegal. (I sure hope there are educated people out there who realize that overturning Roe would return the issue to the states and not instantly make all abortions illegal.)
If the Supreme Court hadn't decided to go beyond its proper role we would have a country with varying abortion laws among the states, which would represent the local views and customs of our diverse country. How wonderfully hypocritical that the party that supposedly loves diversity wants to impose views via judicial fiat instead of through the democratic process.
I think that Roe will likely be overturned at some point because very few legal principles are sustained when subjected to this kind of sustained criticism on and off the court. The fact that even supporters of Roe have to admit that it is a policy belief or unwritten extension of a general principle means that it is difficult to defend as a matter of law. It took 58 years to overturn Separate but Equal (1896 - 1954). Using that timetable Roe would get overturned in 2031. It has only been 34 years since Roe v. Wade. I look forward to the day where I can actually debate the subject with someone and have it matter. What is so great about a democracy where certain issues are undebatable?
In Planned Parenthood v. Casey 505 U. S. 833 (1992), the Supreme Court reaffirmed the general right to an abortion as set out in Roe v. Wade but upheld a few procedural requirements on abortion... such as a 24 hour waiting period. The Supreme Court also upheld a parental notification requirement for any girl under the age of 18 to receive an abortion. Today, however, the Supreme Court (5-4 of course) upheld the Partial-Birth Abortion Act of 2003.
If memory serves I discussed this piece of legislation back when it had recently passed congress in this very journal. The act makes it criminal when (I'm quoting from the released opinion quoting the statute):
"Any physician who, in or affecting interstate or foreign commerce, knowingly performs a partial-birth abortion and thereby kills a human fetus shall be fined under this title or imprisoned not more than 2years, or both. This subsection does not apply to a partial-birth abortion that is necessary to save the life of a mother whose life is endangered by a physical disorder, physical illness, or physical injury, including a life-endangering physical condition caused by or arising from the pregnancy itself."
Partial Birth Abortion is defined as:
"the term ‘partial-birth abortion’ means an abortion in which the person performing the abortion-“
(A) deliberately and intentionally vaginally delivers a living fetus until, in the case of a head-first presentation, the entire fetal head is outside the body of the mother, or, in the case of breech presentation, any part of the fetal trunk past the navel is outside the body of the mother, for the purpose of performing an overt act that the person knows will kill the partially delivered living fetus; and
“(B) performs the overt act, other than completion of delivery, that kills the partially delivered living fetus"
There are also provisions in the bill that allow a charged physician to halt the prosecution briefly to go before a medical review board to determine the medical necessity of an abortion and there is an explicit section stating that a pregnant woman who seeks an illegal abortion cannot be prosecuted.
Long story short... this is a narrowly tailored law. Justice Anthony Kennedy went out of his way to correctly mention how certain forms of Dilation and extraction, such as one where the fetus is basically dismembered in the uterus and extracted piecemeal, are not covered by this law.
The Congress did not pass this law in an attempt to ban a large number of abortion procedures. The law was a test case to see if any restriction of abortions that could occur in the 2nd trimester would be upheld if a vague, catch-all "health of the mother" clause was not present. The Supreme Court has decided that it will not stop legislatures from acting when there is disagreement within the medical community as to the medical repercussions of the lack of such a clause. It is silly to think a single group of doctors could clog the jurisprudence of the Courts. When there is disagreement over facts it is the proper realm of the policy makers in our system to parse out the details... not the courts.
It should be made clear that the current Supreme Court will not overturn Roe. Even if both Roberts and Alito would vote to do so (by no means a sure thing) Kennedy would uphold, at least, 1st trimester abortions as he did in 1992.
It should also be noted that it is likely that this same Supreme Court would uphold other restrictions on abortion. Kennedy dissented in the Stenberg case 6 years ago that would have banned most abortion procedures used (according to those who voted to strike down the statute) after the 4 month of pregnancy.
The case is not a landmark case because it upheld a sweeping law. It is an important case because it is just about the only time the Supreme Court has upheld a ban on a procedure. According to the language of Roe its progeny the government has the right to regulate all 3rd trimester abortions and some 2nd trimester abortions... but until now those were hollow pronouncements.
Another interesting development was that Justices Scalia & Thomas submitted a concurring opinion in which they said that there is no constitutional right to an abortion. The two new justices did not join this opinion. That does not necessarily mean they agree or disagree since Judgers are only supposed to address the issues directly before them. However, that extra opinion reminded me of Justices Brennan and Marshall taking turns writing opinions in the 80's stating that they believed the death penalty to be unconstitutional out of principle.
This entire entry, however, should not be needed. The problem with abortion is that it is a public policy debate that has no basis in the constitution. Abortion before "quickening" was not illegal in the US before the Victorian era as a result of English Common Law. The writers of the 14th Amendment knew darn well what abortion was and did not write it into the Constitution. The issue is not one of new technology or circumstance beyond the imagination of those who drafted the sacred texts.
In the late 18th century states began to make abortions illegal. In 1968 New York legalized most abortions by act of the legislature. Various states had different laws. Despite my strong views on the subject I know there are debatable positions on both sides. This is exactly the kind of policy debate that should take place in a democratic country. To declare something to magically appear in the constitution stifles debate and is fundamentally contrary to the idea of popular sovereignty. It is equally offensive to the Constitution to declare that abortion must be legal as it would be for the Supreme Court to declare that abortion must be illegal. (I sure hope there are educated people out there who realize that overturning Roe would return the issue to the states and not instantly make all abortions illegal.)
If the Supreme Court hadn't decided to go beyond its proper role we would have a country with varying abortion laws among the states, which would represent the local views and customs of our diverse country. How wonderfully hypocritical that the party that supposedly loves diversity wants to impose views via judicial fiat instead of through the democratic process.
I think that Roe will likely be overturned at some point because very few legal principles are sustained when subjected to this kind of sustained criticism on and off the court. The fact that even supporters of Roe have to admit that it is a policy belief or unwritten extension of a general principle means that it is difficult to defend as a matter of law. It took 58 years to overturn Separate but Equal (1896 - 1954). Using that timetable Roe would get overturned in 2031. It has only been 34 years since Roe v. Wade. I look forward to the day where I can actually debate the subject with someone and have it matter. What is so great about a democracy where certain issues are undebatable?