[More Legal News: New Yorks' boss-laden judicial nomination process struck down, but who knows how soon it will not be replaced by some other problematic method. Thus, one editorial suggests independent candidates should get out and run now while they still have a shot. I say the whole sham judicial election thing be replaced by appointments, except perhaps for local housing judges and such.
Meanwhile, Justice Alito (the confirmation of which a veteran Supreme Court reporter thought was handled too politically by the adminstration) was on the "liberal" side of a split among the conservatives respecting a death penalty stay ... one of many recent disputes, going both ways, over lethal injection. Debate exists over what it all means, but his specific vote probably should not be given too much significance.]
The ongoing stream of appellate decisions rejecting the patently unconstitutional federal partial birth abortion law continues, though the Second and Ninth Circuits dealt with it in rather different ways. With a dissent suggesting striking down the law would further an unethical/immoral/legally unjust result and a concurrence begging the Supreme Court to change what the judge thought was a patently unjust precedent (might get his wish), the Second Circuit did strike down the law because of its lack of a "health" exception.
This was practically compelled by precedent, including one in the non-abortion area that did not look too kindly at Congress trying to get around its constitutional decisions via national legislation. Nonetheless, citing the Ayotte decision [O'Connor's last], it asked the parties to submit limited briefs spelling out suitable relief. In other words, perhaps, the law can be saved via a judicially created "health" exception. This might be, especially with the change of the guard on the Court, a good reading of the situation.
But, after striking the law down on broader grounds (including vagueness and undue burden on previability abortions ... is the "partial birth" part basically moot here?), the Ninth Circuit quite logically just struck down the whole statute. Now, the Circuit has a habit of taking opinions to their logic conclusions even though the Supreme Court does not always think it is quite as logically compelled ... the higher court is right by definition in such cases, and one might look for the Supremes to hit the Ninth Circuit over the head with a rolled up newspaper once more. Still, to quote SCOTUS Blog, a judicially created "health" exception is particularly illogical here:
Congress left out a health exception, it found, "in a deliberate effort to persuade" the Supreme Court to overturn its finding in Stenberg in 2000 case that a "partial-birth" ban requires a health exception. "Congress was advised repeatedly that if it passed an abortion ban without a health exception, the statute would be declared unconstitutional," yet it refused to amend the bill to add such an exception, the Court said. Leaving out the exception, it added, was "a critical component" of the measure. Thus, the appeals court said, a court could not properly add a health exception to the law.
"We would not be faithful to its legislative intent were we to devise a remedy that in effect inserts the provision into the statute contrary to its wishes. Such an action would be inconsistent with our proper judicial role," it commented. "It is impossible to say," it added, that Congress would have preferred the Act with a health exception tacked onto it, to no law at all. In situations where legislators cannot get their full legislative goal, legislative leaders may prefer to drop the bill entirely. Dropping a proposal "may be the best way to gain adherents to the cause, inspire the faithful, raise funds, and possibly even generate support for a constitutional amendment," the Court said.
One might say the same applies to the Ayotte opinion, but this case is clearer than the New Hampshire law that actually included an admittedly suspect special judicial bypass option to deal with potential emergency situations. This law went out of its way to reject a health exception at all ... taking the question out of the hands of the woman and her physician, and providing a one side fits all definition of health that is in no way compelled by current medical thought. Congress, clearly partly for political reasons, purposely did not include a health exception. It would be almost ridiculous to put one in for them, letting them have their cake and eat it too in the process. Surely would encourage legislators to pass lousy legislation, while criticizing the activist judges that they assume will save their bacon.
Now, one might argue -- like that dissenting Second Circuit judge -- that Congress had the authority to define "health" in this fashion. I am with a comment on the blog (who is no fan of the procedure or probably abortion overall) that suggested that this is not their bailiwick even with this weak (and unaddressed in litigation, especially after the marijuana case) commerce hook: "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 2 years, or both." Any business is "in or affecting interstate" commerce these days. This allows the Commerce Clause to basically be bottomless.
But, I would take the matter further. Some criticize the Supreme Court for requiring states to look toward current "sound medical practice" (as understood by some subset of the AMA or whatever) in determining abortion policy such as allowing women to have second trimester abortions in less expensive clinics instead of hospitals. Justice O'Connor early in her tenure said as much and many abortion battles in the courts -- including this issue -- deals with this issue. They feel courts should not be "ex offico medical boards" and let states define "health" as they feel fit.
[By nature, partial-birth abortions involve clear "health" situations ... some will argue woman's autonomy alone is the deciding factor, but the tragic situations involved here in particular make the absence of a health exception particularly unconsciousable. Women simply do not just wait around and have these things for the sake of convenience.]
One problem is that abortion seems to be singled out -- it surely is in the area of parental notification and informed consent (do teens have to go to their parents before they decide to have a child? do clinics have to offer abortion literature to pregnant women who might arguably best have one?). Another is basically we are dealing with basic freedom here. A woman's choice respecting her own health, especially is such fundamental areas, should broadly be left to her and her physician. This is surely the case when the policy is corrupted by politics and disputed moral questions, which decide the day as much as neutral medical judgment.
If sound medical practice suggests a certain cancer protocol should be used, though some physicians might not think it is the best one for a certain person, I do not think the ultimate choice should be determined by a divided legislative vote. Such is true here. In certain cases, so-called partial birth abortion is determined to be the safest route. When pre-viable abortions are involved or post-viable ones that are necessary for a woman's health or life, the alternative is not childbirth. The woman still would have the right to have an abortion, one that is not really any less gruesome relatively speaking. Some think all abortions are disgusting, but surely second trimester abortions and on all are unpleasant procedures. Thus, especially given a woman's health is at stake, constitutionally the ban is suspect ... especially a national one.*
[One reply to a separate posting of this essay was upset with the word "disgusting," considering it a shallow adjective, suggesting the whole thing is more a matter of taste than the end of human life. I was specifically concerned with this procedure in particular with which many are particularly "disgusted." Nonetheless, the emotion "disgust" does seem appropriate, surely in "some" cases, to suggest what many feel when they consider this procedure. (See also, Hiding From Humanity.) Still, it suggests caution should be applied in writing these pieces. Anyway, the person also used the "it isn't mentioned in the Constitution" bit ... such is why you can be arrested for talking about the whole thing. Again, critics of my writing should use a bit of caution too ... I sometimes like a bit of a challenge.]
The courts should also not do the Congress' job for them by writing in an exception ... such would surely in effect "legislate" from the bench, something this bunch surely does not want, right? The Supreme Court should either overrule the earlier precedent (giving the feds more power in the process, surely Thomas and Alito will notice) or strike down the law.
What they will do, however, is unclear.
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* Some suggest, as if they really are just concerned with this issue, that partial birth abortion is "too close to infanticide" for their tastes. First off, "partial birth" is criticized as a made up term, which in effect it is. It is not a truly outrageous term though -- the fetus is partially outside the woman (uh ... "birth canal") when the procedure is done. One might not want to call it "birth" -- perhaps rightly so -- given what is being done (more like "death," if you like ... that is, if you consider the fetus "alive"), but in effect it is sort of what is taking place. Still, "birth" surely has special connotations that probably do not fit well with this whole process. If you want to be totally literal, next time you put your sick animal to sleep, explain how you killed him or her. And, do so in graphic detail. Repeat when you do not let a love one linger until the last ounce of life can be squeezed out via current technology. Words have a way of being abused.
Anyway, and sorry I will be a bit graphic here, are they really serious? Again, the alternative in most cases will not be childbirth. It will be a different, and perhaps for that woman more dangerous, type of abortion. And, since we are dealing with second and third trimester abortions here, it will involve fetal development in later stages. Thus, the abortion procedure is not a simple vacuum (sounds bad, huh? how about a life for an unwanted child that you cannot handle?) procedure, but more invasive. One method used in the past was to basically inject some acid sort of thing into the womb to kill the fetus and then induce labor. Another method used these days is hysterectomy -- hard as it is to believe, some women involve here do want to have more children. A third is basically to break the bones and/or puncture parts of the fetus so removal will not puncture the woman. Since doing this with the fetus still in the womb can be dangerous, the current procedure is sometimes deemed prudent.
Anyway, you get the idea -- if you think partial birth abortion is "infanticide," why you would think destroying the fetus while totally inside the womb is not is unclear to me. It seems to me rather formalistic to suggest that it is only "infanticide" when some part of the fetus' body is outside of the womb (perhaps the whole head per the current legislation, though as the Ninth Circuit suggests, it is still a bit [too?] vague). Some suggest the problem is that the whole thing twists the idea of "birth," but certain other methods involve some sort of expelling of the fetus (even abortion pills -- the embryo, that is) or arguably are some bastardization of caesareans. Surely, to the degree some suggest the procedure dulls the ethics of doctors, the other methods are not really any "better."
The bottom line is either the opponents are being selectively squeamish or are trying to criminalize as much abortion as they can get away with. Both are involved here.