T Nation

USSC, Partial Birth Abortion

Relatively small case today, but a big, controversial topic, so sure to garner lots of attention.

The decision was 5-4, with Kennedy providing the swing vote, as expected.

The opinions are here:

Here are some summaries, courtesy of Ed Whelan at NRO, who is a former Scalia clerk at the USSC level:

http://bench.nationalreview.com/post/?q=ODNhNGMzNGNmYTViODQ1MWUyNTI4YzEwYTg4ZTkyYjE=

[i]Justice Kennedy’s majority opinion, joined by the Chief Justice and Justices Scalia, Thomas, and Alito, states:

  1. We apply the balance struck in Planned Parenthood v. Casey. (Slip op. at 14-16.)

  2. The federal Partial-Birth Abortion Ban Act of 2003 is not void for vagueness, does not impose an undue burden, and is not facially invalid.

        a.  The Act is not unconstitutionally vague.  (Slip op. at 18-20.)  It provides doctors of ordinary intelligence a reasonable opportunity to know what is prohibited, and its intent requirement further alleviates any vagueness concerns and prevents against arbitrary enforcement.
    
    
        b.  The Act does not impose an undue burden.  (Slip op. at 20-26.)  Its reach is limited to physicians who carry out the intact D&E after intending at the outset both to deliver the fetus until its head lodges in the cervix and to pierce or crush the fetal skull.  It does not apply to D&Es in which the doctor intends from the outset to remove the fetus in pieces.  The Act differs in this respect from the Nebraska statute struck down in [u]Stenberg v. Carhart[/u].  The identification of specific anatomical landmarks and the inclusion of an overt-act requirement also distinguish the Act from the Nebraska statute.  Also, the canon of constitutional avoidance, which "has, in the past, fallen by the wayside when the Court confronted a statute regulating abortion," also calls for us to give a statute a reasonable construction that would save it from unconstitutionality.
    
    
        c.  The Act does not on its face impose a substantial obstacle to late-term, but pre-viability, abortions.    (Slip op. at 26-37.)  The Act expresses respect for the dignity of human life and advances the interest in protecting the integrity of the medical profession.  These are legitimate objectives under [u]Casey[/u].  [u]Casey[/u]'s requirement of a health exception cannot be tantamount to allowing a doctor to choose the abortion method he prefers.  "Where it has a rational basis to act, and it does not impose an undue burden, the State may use its regulatory power to bar certain procedures and substitute others."
    
    
        The Act's ban on abortions that involve partial delivery of a living fetus furthers the government's legitimate objectives.  The government has an interest in countering the likelihood that some doctors may prefer not to disclose precise details of intact D&E and may thereby cause greater grief to the "mother who comes to regret her choice to abort."
    
    
        Under precedents that we assume to be controlling, the Act would be unconstitutional if it subjected women to significant health risks.  There is documented medical disagreement on this question.  In the face of this uncertainty and given the availability of other abortion procedures that are considered to be safe alternatives, the Court?s precedents instruct that the Act survives a facial attack.   
    
  3. These facial attacks should not have been entertained in the first instance. The proper means to consider exceptions is by as-applied challenge. (Slip op. at 37-38.)

On initial read, this opinion strikes me as a significant victory. In particular, it appears that the Court is disinclined to continue to have special ad hoc rules that uniquely favor those who challenge abortion regulations.[/i]

http://bench.nationalreview.com/post/?q=ZWI2NWI1ZjU0ZWJkYWMyMjU2MTBjNDVjZjg0NDdkNmY=

[i]In a one-paragraph concurrence (joined by Justice Scalia), Justice Thomas makes two points: (1) The Court?s abortion jurisprudence has no basis in the Constitution. (2) The question whether the Act is a permissible exercise of Congress’s Commerce Clause power was not before the Court.

On the broader Roe/Casey question, I would not read anything into the fact that the Chief Justice and Justice Alito do not join this concurrence, as the majority opinion was carefully written on the assumption that the Casey framework applies. On the Commerce Clause question, the Act’s jurisdictional hook would suffice, under existing precedents, to establish Congress’s power. (Of course, Thomas or Scalia might reject, and decline to apply, those precedents.)[/i]

http://bench.nationalreview.com/post/?q=NTJmZjRjMjcxNjczMDVmYjZjZTlmNTNkMGQxNmY4YmE=

[i]The press of business compels a very quick summary of Justice Ginsburg’s dissent (which is full of fiery rhetoric):

The Court’s decision refuses to take Casey and Stenberg seriously. A health exception is necessary. The Court blurs the line between pre-viability and post-viability. Its holding regarding facial challenges is inconsistent with precedent. The only redemptive feature of the opinion is that as-applied challenges may proceed. [/i]

The decision seems to me to be a classic example of Court politics: Kennedy was the swing vote, so Kennedy got assigned the opinion in order to keep him solidly in the majority, and for his part, Kennedy did his best to remind the world that he still holds the keys to the abortion issue.

Aside from any debate on the case, is anyone else even remotely concerned that one unelected judge holds the key to what is supposedly Constitutional law controlling hot political issues such as abortion – or affirmative action?

[quote]BostonBarrister wrote:
Aside from any debate on the case, is anyone else even remotely concerned that one unelected judge holds the key to what is supposedly Constitutional law controlling hot political issues such as abortion – or affirmative action? [/quote]

Indeed. The saving grace of this ruling is that the law can always be repealed or changed, as opposed to the Roe decision which precludes certain kinds of laws from the outset.

I’m even more concerned about the Commerce Clause issues with this law, as I cannot see abortion regulation as anywhere within the enumerated federal powers. Of course, I don’t see a right to abortion in the bill of rights, either. I guess I’m just not cut out to be a Supreme Court Judge…

[quote]nephorm wrote:
Of course, I don’t see a right to abortion in the bill of rights, either. I guess I’m just not cut out to be a Supreme Court Judge…[/quote]

What are you, BLIND??? It’s right there in the … uh … well, it says, um … privacy and like, uh … hmm.

Well, it’s implied, alright?

[quote]nephorm wrote:

I’m even more concerned about the Commerce Clause issues with this law, as I cannot see abortion regulation as anywhere within the enumerated federal powers. Of course, I don’t see a right to abortion in the bill of rights, either. I guess I’m just not cut out to be a Supreme Court Judge…[/quote]

Quite. Though after Gonzales v. Raich (the medical marijuana case), I’m dismayed that the Court has conceded a general regulatory power to Congress in the form of an absurdly deferential standard of review for claimed Commerce Clause applicability.

Here’s a good post on federalism issues with the PBA cause from GMU law professor Ilya Somin: http://www.volokh.com/archives/archive_2007_04_15-2007_04_21.shtml#1176923774

A good excerpt from the post:

In the argument, Justice Stevens and Justice Ginsburg expressed concern that a federal ban on partial birth abortion - particularly one that extends to free abortion clinics - may exceed Congress’ Commerce Clause authority, which only gives it the power to regulate “commerce . . . among the several States:” That concern is, in my view, well-taken. However, it directly contradicts the Court’s decision in Gonzales v. Raich, which endorsed virtually unlimited congressional power over anything that Congress has a “rational” basis to believe is even remotely connected to interstate commerce. Ironically, Stevens wrote the majority opinion in Raich, and Ginsburg signed on to it.

And here is a paper by professors Dave Koppel and Glen Reynolds from back in 1997 arguing that federal bans of certain abortion procedures aren’t within the Commerce Clause Power: http://davekopel.com/CJ/LawRev/Taking_Federalism_Seriously.htm

Whoopie!!! Finally a step in the right direction. Yes, I am pro-life. That is the only reason, and I mean only reason any republican gets my vote. This is a great ruling in that finally the line between life and not-a-life is not defined by the moment of birth.

Inadvertently, given all the big news this week, this slid quietly under the radar. The pro-abortion folks should be afraid. Soon it will go the way of slavery.

[quote]pat36 wrote:
Soon it will go the way of slavery.[/quote]

You mean decided by war, rather than the democratic process?

[quote]nephorm wrote:
pat36 wrote:
Soon it will go the way of slavery.

You mean decided by war, rather than the democratic process?[/quote]

Yes. Everyone will get dressed up in blue and gray uniforms, grow cool beards and wear weird hats too.

[quote]pat36 wrote:
Whoopie!!! Finally a step in the right direction. Yes, I am pro-life. That is the only reason, and I mean only reason any republican gets my vote. This is a great ruling in that finally the line between life and not-a-life is not defined by the moment of birth.

Inadvertently, given all the big news this week, this slid quietly under the radar. The pro-abortion folks should be afraid. Soon it will go the way of slavery.[/quote]

And finally you will have organized violence, aka government, enforce your beliefs, opening thousands of ways other people can force you to obey their more or less irrational beliefs.

Bow to Baal Sir, and be glad that your dreams came true…

[quote]
pat36 wrote:
Soon it will go the way of slavery.

nephorm wrote:
You mean decided by war, rather than the democratic process?[/quote]

As if the USSC represented democratic decisionmaking… :wink:

Appropo to the question of a Commerce Clause challenge to the PBA regulation by Congress, Professor Ilya Somin notes that at least 4 justices have indicated, for very different reasons, that they might support it: Thomas and Scalia (principle) and Ginsberg and Stevens (for the purpose of achieving their desired result in this case):

http://www.volokh.com/posts/chain_1176909584.shtml

[i]How Many Justices Would Support a Commerce Clause Challenge to the Federal Partial Birth Abortion Ban?

Justice Clarence Thomas, joined by Justice Scalia, wrote an interesting concurrence in yesterday’s partial birth abortion case, indicating that he might be sympathetic to a Commerce Clause challenge to the federal partial birth abortion ban that was just upheld by the Court. At the oral argument, liberal justices Ruth Bader Ginsburg and John Paul Stevens also suggested that they believe that at least some applications of the statute exceed Congress’ enumerated powers under the Commerce Clause. I discuss their concerns in more detail here ( http://volokh.com/archives/archive_2007_04_15-2007_04_21.shtml#1176923774 ) and here ( http://volokh.com/archives/archive_2007_04_15-2007_04_21.shtml#1176923774 ).

Assuming for the sake of argument that these four justices would all support a Commerce Clause challenge to the statute, could they pick up a fifth vote? It is difficult to know for sure, but the answer may well be yes. As I explained at the time of his nomination ( http://www.cato.org/pub_display.php?pub_id=5188 ), Justice Alito had a strong record of support for limits on federal power as a court of appeals judge, and he might well continue in that vein on the Supreme Court. It is also possible, though far less likely, that Justice Souter or Justice Breyer (who wrote the Supreme Court’s earlier partial birth abortion decision, Stenberg v. Carhart ( http://www.law.cornell.edu/supct/html/99-830.ZS.html )), would place their commitment to abortion rights ahead of their commitment to virtually unlimited federal power.

All of this is of course highly conjectural. Predicting justices’ votes on the basis of remarks in oral arguments is a chancy business. Ditto with predictions based on opaque concurring opinions. Only in the case of Justice Thomas am I close to certain about what his vote will be. The other four are considerably more difficult to predict. Moreover, whether or not a Commerce Clause challenge to the partial birth abortion ban succeeds will depend in part on the specific facts of the case. A case addressing a partial birth abortion in a nonprofit clinic involving a woman who did not cross state lines, would be more likely to succeed than one with a commercial clinic or an interstate transaction.

Nonetheless, there is at least some significant chance that a cross-ideological coalition of justices would be willing to support a federalism-based challenge to the congressional partial birth abortion ban. If it does come to pass, it will be hugely important as the first Commerce Clause case in decades where federal power was constrained by a coalition of liberal and conservative justices rather than by a narrow 5-4 majority consisting of the five most conservative members of the Court. In my view (see here for details: http://papers.ssrn.com/sol3/papers.cfm?abstract_id=916965 ), judicial enforcement of limits on federal power cannot survive in the long run if it remains a parochial concern of conservatives and libertarians. Just as with judicial enforcement of free speech, freedom of religion, and other constitutional constraints on government power, it requires a broader cross-ideological consensus in order to succeed.

[/i]

[quote]BostonBarrister wrote:
As if the USSC represented democratic decisionmaking… ;-)[/quote]

I don’t disagree. It doesn’t.

I would be perfectly happy to leave the abortion issue to the states, just as I think the drug issue ought to be left to the states, except for the interstate sale of those substances.

As far as judicial review goes, I would very much like to see something like a “vote of no confidence” instituted for members of the SC. I understand the need for skilled interpreters of the Constitution who are not elected to serve the political whim of the day. But there ought to be a process whereby individual justices may be challenged on their methodology, and removed from the court.

To what extent can we consider a ruling that dictates to physicians what procedures they can and cannot do, as “keeping the federal government off your back”?

[quote]Brad61 wrote:
To what extent can we consider a ruling that dictates to physicians what procedures they can and cannot do, as “keeping the federal government off your back”?[/quote]

To what extent can we consider a ruling that dictates to murderers what procedures they can and cannot do, as “keeping the federal government off your back”?

[quote]orion wrote:
pat36 wrote:
Whoopie!!! Finally a step in the right direction. Yes, I am pro-life. That is the only reason, and I mean only reason any republican gets my vote. This is a great ruling in that finally the line between life and not-a-life is not defined by the moment of birth.

Inadvertently, given all the big news this week, this slid quietly under the radar. The pro-abortion folks should be afraid. Soon it will go the way of slavery.

And finally you will have organized violence, aka government, enforce your beliefs, opening thousands of ways other people can force you to obey their more or less irrational beliefs.

Bow to Baal Sir, and be glad that your dreams came true…

[/quote]

I believe abortion to be murder. I happen to think murder is a bad thing and should be illegal. Until some one manages to prove at what point life begins, I will give the benefit of the doubt to the fetus and fight for the rights of the unborn. If you don’t like it, you can kiss my ass.

[quote]Brad61 wrote:
To what extent can we consider a ruling that dictates to physicians what procedures they can and cannot do, as “keeping the federal government off your back”?[/quote]

The ruling doesn’t dictate anything. The ruling upholds a law that dictates to physicians – much as a law that outlaws assisted suicides dictates to physicians.

All laws essentially dictate to us what we cannot do – even tax laws dictate that we must spend a certain amount of our income on certain items. If you don’t like that whole idea, this little law is a very interesting place to start protesting…

[quote]
BostonBarrister wrote:
As if the USSC represented democratic decisionmaking… :wink:

nephorm wrote:
I don’t disagree. It doesn’t.

I would be perfectly happy to leave the abortion issue to the states, just as I think the drug issue ought to be left to the states, except for the interstate sale of those substances.

As far as judicial review goes, I would very much like to see something like a “vote of no confidence” instituted for members of the SC. I understand the need for skilled interpreters of the Constitution who are not elected to serve the political whim of the day. But there ought to be a process whereby individual justices may be challenged on their methodology, and removed from the court.[/quote]

That would be great.

Of course, it’s pretty easy to see the judicial philosophy of anyone who’s served more than a few years on an appellate court and exercise better judgment in picking them as justices ex ante.

Also – I think I’d be happy if they just had term limits.

[quote]pat36 wrote:
orion wrote:
pat36 wrote:
Whoopie!!! Finally a step in the right direction. Yes, I am pro-life. That is the only reason, and I mean only reason any republican gets my vote. This is a great ruling in that finally the line between life and not-a-life is not defined by the moment of birth.

Inadvertently, given all the big news this week, this slid quietly under the radar. The pro-abortion folks should be afraid. Soon it will go the way of slavery.

And finally you will have organized violence, aka government, enforce your beliefs, opening thousands of ways other people can force you to obey their more or less irrational beliefs.

Bow to Baal Sir, and be glad that your dreams came true…

I believe abortion to be murder. I happen to think murder is a bad thing and should be illegal. Until some one manages to prove at what point life begins, I will give the benefit of the doubt to the fetus and fight for the rights of the unborn. If you don’t like it, you can kiss my ass.
[/quote]

You can beleive in what religious superstition you want to believe in.

If you force other people do live as they were somehow special untill they can disprove your special version of Santa you are a 21th century taliban.

You are actually advocating that human people are put into cages because they disagree with your mystical BS.

I am sure you are very proud of yourself.

[quote]orion wrote:

You can beleive in what religious superstition you want to believe in.

If you force other people do live as they were somehow special untill they can disprove your special version of Santa you are a 21th century taliban.

You are actually advocating that human people are put into cages because they disagree with your mystical BS.

I am sure you are very proud of yourself. [/quote]

He believes an unborn child is still a human being and has a righ to live. You say that is “mystical BS”?

[quote]orion wrote:
pat36 wrote:
orion wrote:
pat36 wrote:
Whoopie!!! Finally a step in the right direction. Yes, I am pro-life. That is the only reason, and I mean only reason any republican gets my vote. This is a great ruling in that finally the line between life and not-a-life is not defined by the moment of birth.

Inadvertently, given all the big news this week, this slid quietly under the radar. The pro-abortion folks should be afraid. Soon it will go the way of slavery.

And finally you will have organized violence, aka government, enforce your beliefs, opening thousands of ways other people can force you to obey their more or less irrational beliefs.

Bow to Baal Sir, and be glad that your dreams came true…

I believe abortion to be murder. I happen to think murder is a bad thing and should be illegal. Until some one manages to prove at what point life begins, I will give the benefit of the doubt to the fetus and fight for the rights of the unborn. If you don’t like it, you can kiss my ass.

You can beleive in what religious superstition you want to believe in.

If you force other people do live as they were somehow special untill they can disprove your special version of Santa you are a 21th century taliban.

You are actually advocating that human people are put into cages because they disagree with your mystical BS.

I am sure you are very proud of yourself. [/quote]

Yes, I am quite proud of myself. I never mentioned religion or mystical anything. I merely want solid concrete proof that a fetus of any stage is not a human being.

Once proof is provided I will support any abortion prior to that point. Up until that point, I will continue to believe a person starts when the egg is completely fertilized by the sperm. Seems to me the most logical point.

Yes, anybody who wantingly and willingly commits murder should be jailed. If that is what you mean by “cages”.

[quote]pat36 wrote:
I will continue to believe a person starts when the egg is completely fertilized by the sperm.[/quote]

Embryologists estimate that the rate of natural loss for embryos that have developed for seven days or more is 60 percent.

What do you propose we should do to save all those human beings? Lives lost to abortion are nothing, number wise, compared to that. 60%!