I wasn't entirely expecting this.
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.
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.
I gave my thoughts on this case months ago, when the Supremes first accepted it for review, and it hasn't changed any since then. The procedure is exceedingly rare, and there are at least some cases where it is medically justified. So the question for me -- and the Court, apparently -- is whether there are alternatives to partial-birth abortion that are equally effective and safe. If so, then banning a specific, gruesome procedure is no problem. If not, the ban would effectively prevent women in certain situations from obtaining a medically necessary abortion.
The Court decided there were sufficient alternatives. Notably, the government suggested that if the fetus were killed first -- by lethal injection to stop the heart, say -- it could then be legally aborted.
This may be true, but then one may ask what is gained by banning PBAs. It will ban one particularly gruesome procedure, yes. And it marks a legal landmark of sorts -- the first upheld restriction on a particular kind of abortion. As such, one might view it as the first step toward a wider ban.
But in the end, it doesn't appear that this ruling will prevent any abortions at all -- doctors will simply use alternative methods. And the Court explicitly left open the door to lawsuits by women harmed by the ban -- though that after-the-fact form of redress isn't going to help anyone in their seventh month of pregnancy. Someone is going to have to actually suffer some harm before the ban can be challenged.
What's interesting is how the Court managed to ignore precedent to reach its ruling, specifically the Stenberg v. Carhart ruling in 2000, in which a nearly identical ban was struck down by the Court. While the Court explained that it did not in fact ignore Stenberg -- that it's ruling is merely a narrow procedural one -- it's still hard to see how there are any substantive differences between the law then and the law now. The only real difference, it would seem, is the makeup of the court: specifically, the departure of Sandra Day O'Connor and the arrival of Samuel Alito.
That's how it has always been, of course: what is constitutional depends heavily on the biographies of the Justices. And it's not even necessarily a bad thing, for that is one way that law evolves. Still, this is a stark reminder of the essentially political nature of the Court.
Ruth Bader Ginsburg wrote a stinging dissent, read aloud from the bench. Read it and the other opinions here (pdf).
And for a truly excellent, in-depth discussion of the case by a bunch of lawyers, head on over to Stubborn Facts. They do a much better job of it then I could ever hope to.
abortion, politics, midtopia
3 comments:
You didn't read this post, did you?
Sean, thanks for the compliment. It's definitely a case which will be closely scrutinized over the coming years.
Personally, as one who thinks that the law should be based on, well, the law, rather than the justices personal feelings (however disguised) about the case, I'm hopeful that this case will get more people on the political left to see the dangers of leaving the constitution to be dictated by the personal musings of Anthony Kennedy. While I support the result, mostly for the same reason that Scalia and Thomas did, the legal reasoning of the opinion is painful, frankly. It's obvious from the phrasing that Kennedy finds PBA gruesome, and I suspect that ultimately that's what led him to join the majority. That shouldn't be the basis for the law.
I've often said that while my first preference would be a Scalia or Thomas on the bench, I'd still rather have a Thurgood Marshall or a Blackmun rather than an O'Connor or Kennedy. At least that way there would be some kind of consistent philosophy underpinning the decisions, even if it's a philosophy I disagree with.
After just reading the description of the gruesome procedure, I don't see how anybody----ANYBODY----could possibly defend it. My God---it is absolutely NO DIFFERENT than a person sticking scissors in the back of the head of their 2-month old baby, and they would go to prison for that. NO DIFFERENT whatsoever.
JP5
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