Thursday, April 19, 2007
The Supreme Court yesterday (or the day before?) upheld a federal law banning partial birth abortions. Where I am at the moment there is one computer between 12 of us so I'm just now getting around to reading the opinion via scotusblog.
It's a sharply divided court.
Both sides make strong arguments.
The majority, Kennedy and the 4 (relatively) conservatives, builds on and distingusiehs existing precedents and defers to congress, in a way that's a lot like McConnell v FEC. Little mention of privacy, little discussion of a standard of review.
The minority, Ginsburg for the 4 (relatively)liberals, point out how this decision doesn't save any babies, and thus doesn't do much about furthering state interests, defers to congress where it is factual wrong, and endangers both the health and autonomy of (childbearing)women.
Thomas, joined by Scalia, concurrs that the constitution doesn't protect abortion,
but that he might have entertained a commerce clause argument if the question had been raised.
(In drafting cert petitions and questions presented, one should always leave room for an argument directed precisely to Justice Thomas - sometimes, as here, you need that 5th vote.)
One of the most troubling points in the decision is the majority's attack on facial challenges. The Roberts court wants to see as-applied challenges in discete (not discreet) cases. So we'll have cases brought by the estates of dead women dragging on for years, instead of prompt resolutions. States can play that kind of waiting game. Sure, the abortion lobby can and will find the resources to litigate such cases, but it's a trend away from being able to look to courts for redress of (possible) rights violations,and a license to legislatures to pass popular but unconstitutional acts.
I personally am agnostic on the abortion issue - it's a decision I leave to others who are more vested.
The majority decision has some colorful language about babies kicking and squirming as their heads are crushed. I think that's helpful to the debate.
But I had though this was a late term procedure - instead, it can apply at the 4th month in pre-viability cases. The case does not outlaw abortion. It outlaws a specifi procedure. What the states will do next, remains to be seen.
This is the decision that liberals had feared in Bush v Gore (the campaign, and the case.) The court appoints a president, the president appoints new justices, and Roe gets rolled back.
I continue to think that a Gore presidency wouldn't have been better - Gore is simply now the devil we don't know.
One possible solution is for congress to revisit the topic, to vote on an amendment for such abortions in limited cases where the health of the mother is genuinely at risk. Bush rarely uses the veto.
One thing this case will do will be to boost fundraising letters on both sides.
All for now.
It's a sharply divided court.
Both sides make strong arguments.
The majority, Kennedy and the 4 (relatively) conservatives, builds on and distingusiehs existing precedents and defers to congress, in a way that's a lot like McConnell v FEC. Little mention of privacy, little discussion of a standard of review.
The minority, Ginsburg for the 4 (relatively)liberals, point out how this decision doesn't save any babies, and thus doesn't do much about furthering state interests, defers to congress where it is factual wrong, and endangers both the health and autonomy of (childbearing)women.
Thomas, joined by Scalia, concurrs that the constitution doesn't protect abortion,
but that he might have entertained a commerce clause argument if the question had been raised.
(In drafting cert petitions and questions presented, one should always leave room for an argument directed precisely to Justice Thomas - sometimes, as here, you need that 5th vote.)
One of the most troubling points in the decision is the majority's attack on facial challenges. The Roberts court wants to see as-applied challenges in discete (not discreet) cases. So we'll have cases brought by the estates of dead women dragging on for years, instead of prompt resolutions. States can play that kind of waiting game. Sure, the abortion lobby can and will find the resources to litigate such cases, but it's a trend away from being able to look to courts for redress of (possible) rights violations,and a license to legislatures to pass popular but unconstitutional acts.
I personally am agnostic on the abortion issue - it's a decision I leave to others who are more vested.
The majority decision has some colorful language about babies kicking and squirming as their heads are crushed. I think that's helpful to the debate.
But I had though this was a late term procedure - instead, it can apply at the 4th month in pre-viability cases. The case does not outlaw abortion. It outlaws a specifi procedure. What the states will do next, remains to be seen.
This is the decision that liberals had feared in Bush v Gore (the campaign, and the case.) The court appoints a president, the president appoints new justices, and Roe gets rolled back.
I continue to think that a Gore presidency wouldn't have been better - Gore is simply now the devil we don't know.
One possible solution is for congress to revisit the topic, to vote on an amendment for such abortions in limited cases where the health of the mother is genuinely at risk. Bush rarely uses the veto.
One thing this case will do will be to boost fundraising letters on both sides.
All for now.
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