Supreme Court Upholds Partial Birth Abortion Ban

[dairygirl4u2c]

below is an article of a ruling by the US supreme court. they just upheld the federal partial birth abortion ban. it's the first time in 30 years any progress has been made. it's more of a brightline sign that any out of utero babies cannot be killed. the ruling leaves the option to abort in utero then remove, technicality. so, it's more of an ideological ruling than anything.

which doesn't necessarily mean you should vote for republicans bc of abortion. USSC said in 92 they weren't gonna over turn Roe. they've never considered the question again, at least marjoity wise. They said later that a state ban on partial birth was illegit. Now, the federal ban is legit because they defined that partial birth's are unnecessary in Congress, which USSC defers to their definitions. So, that's all that's been done judicially, and little progress has been made overall. Most of regans appointees upheld Roe, many other republican appointees follow precedent, though some do want to go to the states. the biggest problem i see is that even if a republican were always elected and conservatives justices elected, they could very easily continue with Roe given the precedent. i guess there is hope for a state deferral, which wouldn't end it, but fragment the problem. i don't see any signals of this though, so it seems even with republicans, they would continue as is.
it seems the best indicator of whether to vote for partial birth is to look at US values. i think most are prochoice for early on in pregnancy. if that's teh case, no one's going to vote for republicans anyway. it's not like there's a push for banning abortion, but those are against it won't stand up. plus, like i said, even if they did, i'm not sure it'd matter.... (though i guess legislation could at least be passed, but then you'd have to get enough to pass the constitutional test put out there by the USSC. judicial tyranny, i wouldn't disagree)
maybe i'm a cynic?

plus, 90 percent of the abortions are before the procedure can even occur. and most of the later ones are not partial birth. i guess there may be more types of attacking abortion that i haven't thought of? i'm open for ideas. (like attacking abortion providers? because technically they are not entitled to privacy when openly having abortion clinics etc)

[quote]Court upholds ban on abortion procedure By MARK SHERMAN, Associated Press Writer
15 minutes ago



WASHINGTON - The Supreme Court upheld the nationwide ban on a controversial abortion procedure Wednesday, handing abortion opponents the long-awaited victory they expected from a more conservative bench.

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The 5-4 ruling said the Partial Birth Abortion Ban Act that Congress passed and President Bush signed into law in 2003 does not violate a woman's constitutional right to an abortion.

The opponents of the act "have not demonstrated that the Act would be unconstitutional in a large fraction of relevant cases," Justice Anthony Kennedy wrote in the majority opinion.

The administration defended the law as drawing a bright line between abortion and infanticide.

The decision pitted the court's conservatives against its liberals, with President Bush's two appointees, Chief Justice John Roberts and Justice Samuel Alito, siding with the majority.

Justices Clarence Thomas and Antonin Scalia also were in the majority.

It was the first time the court banned a specific procedure in a case over how — not whether — to perform an abortion.

Abortion rights groups as well as the leading association of obstetricians and gynecologists have said the procedure sometimes is the safest for a woman. They also said that such a ruling could threaten most abortions after 12 weeks of pregnancy, although government lawyers and others who favor the ban said there are alternate, more widely used procedures that remain legal.

The outcome is likely to spur efforts at the state level to place more restrictions on abortions.

"I applaud the Court for its ruling today, and my hope is that it sets the stage for further progress in the fight to ensure our nation's laws respect the sanctity of unborn human life," said Rep. John Boehner (news, bio, voting record) of Ohio, Republican leader in the House of Representatives.

Said Eve Gartner of the Planned Parenthood Federation of America: "This ruling flies in the face of 30 years of Supreme Court precedent and the best interest of women's health and safety. ... This ruling tells women that politicians, not doctors, will make their health care decisions for them." She had argued that point before the justices.

More than 1 million abortions are performed in the United States each year, according to recent statistics. Nearly 90 percent of those occur in the first 12 weeks of pregnancy, and are not affected by Wednesday's ruling.

Six federal courts have said the law that was in focus Wednesday is an impermissible restriction on a woman's constitutional right to an abortion.

The law bans a method of ending a pregnancy, rather than limiting when an abortion can be performed.

"Today's decision is alarming," Justice Ruth Bader Ginsburg wrote in dissent. She said the ruling "refuses to take ... seriously" previous Supreme Court decisions on abortion.

Ginsburg said the latest decision "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."

She was joined by Justices Stephen Breyer, David Souter and John Paul Stevens.

The procedure at issue involves partially removing the fetus intact from a woman's uterus, then crushing or cutting its skull to complete the abortion.

Abortion opponents say the law will not reduce the number of abortions performed because an alternate method — dismembering the fetus in the uterus — is available and, indeed, much more common.

In 2000, the court with key differences in its membership struck down a state ban on partial-birth abortions. Writing for a 5-4 majority at that time, Justice Breyer said the law imposed an undue burden on a woman's right to make an abortion decision.

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.

But federal judges in California, Nebraska and New York said the law was unconstitutional, and three appellate courts agreed. The Supreme Court accepted appeals from California and Nebraska, setting up Wednesday's ruling.

Kennedy's dissent in 2000 was so strong that few court watchers expected him to take a different view of the current case.

Kennedy acknowledged continuing disagreement about the procedure within the medical community. In the past, courts have cited that uncertainty as a reason to allow the disputed procedure.

But Kennedy said, "The law need not give abortion doctors unfettered choice in the course of their medical practice."

He said the more common abortion method, involving dismemberment, is beyond the reach of the federal ban.

While the court upheld the law against a broad attack on its constitutionality, Kennedy said the court could entertain a challenge in which a doctor found it necessary to perform the banned procedure on a patient suffering certain medical complications.

Doctors most often refer to the procedure as a dilation and extraction or an intact dilation and evacuation abortion.

The law allows the procedure to be performed when a woman's life is in jeopardy.

The cases are Gonzales v. Carhart, 05-380, and Gonzales v. Planned Parenthood, 05-1382.[/quote]

[dairygirl4u2c]

maybe getting back to the original intentinos of roe. as roe was suppose to be about limiting it to the health of the month after the first trimester. not allowing a skewed definitino of "health".
maybe i shouldn't be so cynical.

a numbers game, if they did that, most of the 10% in second and third trimester would end. 1 million a year total means 100000 about prevented per year. pretty significant.

Edited April 18, 2007 by dairygirl4u2c

[Sojourner]

Here is what I posted in the Open Mic thread on this topic:

OK here is the legal significance of the case, in addition to the moral victory ()

My professor represented a number of corollary organizations on this case, and has actually been involved in other related cases, such as a predecessor to this case, [i]Stenberg v. Carhart[/i] (2000). In that case, the Nebraska legislature passed a partial birth abortion ban, and Dr. Carhart challenged the state regulation, and won. There were several points from the Stenberg case that are important in understanding this more recent case.

But to understand that case, it is important to understand some of the findings of Roe v. Wade. In Roe, individual states are given a graduated right to regulate abortion. In the first trimester, when 85 percent of abortions are performed, the Roe court found states have no right to regulate abortion. In the second trimester, states have the right to regulate only for the safety of the woman, and not because of an interest in the unborn child. In the last trimester, states have great latitude in their ability to regulate abortions, up to an outright ban on late-term abortions.

Read the following only when not eating lunch:
[spoiler]The testimony given by Dr. Carhart in the Stenberg case did a couple of things. First, he testified that he never performed partial-birth abortions in the last trimester (when the state has the most regulatory power) but only in the middle one, when states may regulate only to protect the life/health of the mother. Second, he testified that he never turned the fetus so that it presented breach. The early medical literature at the time indicated that the highest risk to the woman in a partial birth abortion was the turning of the fetus to cause it to present breach. In addition, this particular form of abortion is considered safer for women because the primary medical risk to women after an abortion is infection, which untreated can be life-threatening. The most common cause of infection from a dilation and extraction (when the baby is dismembered) is from retained fetal parts -- the doctor doesn't get it all cleaned out. Another common risk is from perforation of the uterus due to multiple passes to remove all trace of the baby from the uterus. This can lead to bleeding and infection. In a partial-birth abortion, these risks are lower because a) the child is removed intact, so no parts are left behind, and b) there are no sharp objects introduced into the uterus. Studies indicate (and it sickens me that there are studies comparing these procedures) but studies indicate that a PBA is actually safer for the mother. This is the prevailing medical opinion.[/spoiler]

In stating her views on this, Ruth Ginsburg basically said, if you're going to end up with a dead baby no matter what, why not go with the process that is safer for the woman? This was basically the view adopted by the majority here.

The same study that found that PBA is safer for women did find one other result that is important. Because the cervix must be dilated more to do a PBA, it greatly increases the risk of premature delivery in future pregnancies.

So the big finding from Stenberg is that when there is a disputed medical question (i.e., which abortion procedure is preferable in terms of safety for the woman) you must leave the resolution of it to the medical profession to determine whether a procedure is medically legitimate or not. If there is substantial medical authority that supports the procedure as a legitimate medical procedure, then the medical profession has to have the professional autonomy to perform the procedure.

Unlike legislature in Neb., if congress takes on disputed medical question, then Congress has the authority to ban the procedure. Huge change from the autonomy of the medical profession to the ability of the legislature to regulate procedures.

Now, to further explore the jurisprudential terrain coming into today's decision, you have to understand other decisions outside the realm of abortion that have been happening. In the area of physician-assisted suicide and of regulation of medical marijuana, there have been several cases that have been hashing out who has teh power to regulate medically-related decisions. Issues of substantive due process (is there actually a Constitutional provision for this stemming from the 5th and 14th Amendments?) and federalism (what is the balance of power between state and federal governments?) have been at the center of these disputes.

So, subsequent to Stenberg, the court finds that states have no power to weigh in on medical practices. If the feds find that there is no medicinal purpose to a particular drug (marijuana) they have the power to ban it. And, when it comes to the nature of the practice of medicine (Oregon and physician-assisted suicide) states have to be free to define what the practice of medicine is.

The question in today's case is, does the federal legislature have the power to ban disputed medical procedures? Or are they, like states, prohibited from making laws regulating this? The court finds that Congress is free to regulate disputed medical procedures, which brings the question of this back into the public forum and out of the hands of the medical community.

A further important and more broadly-reaching part of the decision is a restriction on the federal court's ability to enjoin laws before they have gone into effect based on a hypothetical problem with the law. Laws regulating abortion and free speech have been subject to pre-enforcement facial challenges, because of the concerns about chilling a constitutional right. This court finds that abortion laws cannot be challenged until there is actually a case or controversy arising under the law, and that pre-enforcement challenges are limited to the free speech arena.

[dairygirl4u2c]

So you'd agree then that the states are going past their allowance to say what "saftey" means? It seems pretty blatant violation of Roe, but I'm not sure how the courts handle that, or if it varies by jurisdiction.

Edited April 18, 2007 by dairygirl4u2c

[Sojourner]

[quote name='dairygirl4u2c' post='1248125' date='Apr 18 2007, 02:23 PM']So you'd agree then that the states are going past their allowance to say what "saftey" means? It seems pretty blatant violation of Roe, but I'm not sure how the courts handle that, or if it varies by jurisdiction.[/quote]
OK ... the justices actually distinguish the facts of this case from Stenberg, the Nebraska statute, which was more broadly written.

Nothing overruled, but distinguished.

Edited April 18, 2007 by Terra Firma

[Socrates]

This is certainly a step in the right direction - anything that chips away at our current abortion-on-demand national policy is good.

Still Roe v. Wade will have to be overturned before much further progress is made. Banning "partial-birth abortion" is allowable under the Roe v. Wade ruling, but the definition of "health" is so loose in modern legal parlance, that it essentially ensures that almost all abortions remain legal.

However, I think the obvious horror of partial-birth abortion can help draw attention to the horror of all abortion, and this debate helps shift focus to the central issue of child being killed, rather than "personal autonomy" and other bogus issues.

[Sojourner]

[quote name='Socrates' post='1248452' date='Apr 18 2007, 07:21 PM']This is certainly a step in the right direction - anything that chips away at our current abortion-on-demand national policy is good.

Still Roe v. Wade will have to be overturned before much further progress is made. Banning "partial-birth abortion" is allowable under the Roe v. Wade ruling, but the definition of "health" is so loose in modern legal parlance, that it essentially ensures that almost all abortions remain legal.

However, I think the obvious horror of partial-birth abortion can help draw attention to the horror of all abortion, and this debate helps shift focus to the central issue of child being killed, rather than "personal autonomy" and other bogus issues.[/quote]
the broad definition of "health" is thanks to Doe v. Bolton which was released at the same time as Roe.

And one thing I hope gets reported (but hasn't been thus far) is that the opinion leaves available an equally heinous form of abortion, where the child is dismembered before being removed from the uterus piece by piece. This is still legal in late-term abortions.

[Socrates]

[quote name='Terra Firma' post='1248702' date='Apr 18 2007, 09:30 PM']the broad definition of "health" is thanks to Doe v. Bolton which was released at the same time as Roe.

And one thing I hope gets reported (but hasn't been thus far) is that the opinion leaves available an equally heinous form of abortion, where the child is dismembered before being removed from the uterus piece by piece. This is still legal in late-term abortions.[/quote]
Roe v. Wade is still a heinous ruling, and ought to be overturned.

And obviously, this decision does not make everything fine and good, but it is a victory still. Better some restrictions on baby-killing than none whatsoever. I think this ruling will help shift focus in the right direction.

[Sojourner]

[quote name='Socrates' post='1248726' date='Apr 18 2007, 09:37 PM']Roe v. Wade is still a heinous ruling, and ought to be overturned.

And obviously, this decision does not make everything fine and good, but it is a victory still. Better some restrictions on baby-killing than none whatsoever. I think this ruling will help shift focus in the right direction.[/quote]
well I didn't say it wasn't a heinous ruling and that it shouldn't be overturned

sheesh

give me some credit

just because I don't agree with you on 90 percent of political topics doesn't mean we aren't in line sometimes.

[Socrates]

[quote name='Terra Firma' post='1248747' date='Apr 18 2007, 09:43 PM']well I didn't say it wasn't a heinous ruling and that it shouldn't be overturned

sheesh

give me some credit

just because I don't agree with you on 90 percent of political topics doesn't mean we aren't in line sometimes.[/quote]
I was just clarifying.

[Sojourner]

[quote name='Socrates' post='1248763' date='Apr 18 2007, 09:52 PM']I was just clarifying.[/quote]
ok ... guess I need to take a bit of my own advice.

[dairygirl4u2c]

The woman in Doe said she's now pro-life. She tried to get the USSC to hear her case again around the same time the court heard about the partial birth abortion case last fall but they would not hear it. I'm not sure why they wouldn't. probably because it was so long ago, and she didn't have a live controversy last fall.

[url="http://en.wikipedia.org/wiki/Doe_v._Bolton"]http://en.wikipedia.org/wiki/Doe_v._Bolton[/url]

Actually, they did not say why they denied hearing it, but it was probably for the reasons I said.
[quote]WASHINGTON (CNN) -- The Supreme Court turned back a legal appeal Tuesday from a Georgia woman who wanted the justices to reverse a 1973 ruling giving her the right to an abortion.

Sandra Cano was part of the original series of landmark rulings from the high court legalizing the medical procedure. The justices without comment refused to reopen the case. Cano, a resident of Atlanta, was "Mary Doe" in the Doe v. Bolton appeal that was a companion argument to the more famous Roe v. Wade, both decided on Jan. 22, 1973. Cano argued in her appeal that she had never wanted in abortion in the first place, had been living in an abusive relationship, and had been forced by her attorney to fight the abortion option in court.[/quote]

This is proof against the idea that they might restrict health to actual physical health.

Edited April 19, 2007 by dairygirl4u2c