It is going to be a big day of other people's work because I don't have time to post anything of my own. However, that doesn't mean the day is news-free. The Supreme Court issued a decision today upholding the Federal Partial Abortion ban:
A closely divided U.S. Supreme Court on Wednesday upheld the first nationwide ban on a specific abortion procedure, restricting abortion rights in a ruling on one of the nation's most divisive and politically charged issues.
By a 5-4 vote, the high court rejected two challenges to the Partial-Birth Abortion Ban Act that President George W. Bush signed into law in 2003 after its approval by the Republican-led U.S. Congress.
The decision marked the first time the nation's high court has upheld a federal law banning a specific abortion procedure since its landmark Roe v. Wade ruling in 1973 that women have a basic constitutional right to abortion.In a defeat for abortion rights advocates, the court's conservative majority with two Bush appointees upheld the law adopted after nine years of hearings and debate. The law has never been enforced because of court challenges.
The majority opinion written by Justice Anthony Kennedy rejected arguments the law must be struck down because it imposes an undue burden on a woman's right to abortion, it is too vague or too broad and fails to provide an exception for abortions to protect the health of a pregnant woman.
The court's four most liberal members -- Justices Ruth Bader Ginsburg, John Paul Stevens, David Souter and Stephen Breyer -- dissented.
Analysis is available at the Volokh Conspiracy (here and here) where Orin Kerr does not find the decision particularly sweeping in upholding the "undue burden" standard. Analysis is also available at SCOTUSBlog where Kyle Denniston finds the decision far more sweeping.
The text of the decision is available here.
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Unfortunately the linked text of the decision is a scan, not searchable text. Yahoo News has an AP article which says:
So, the act would only be unconstitutional part of the time, and that's good enough for justices of the Supreme Court?
In a sense, Mustafa - yes. It's a complicated and convoluted thought process, but I'll try and distill it.
When debating the Act, Congress held hearings to determine if a health exception was necessary - in other words, to determine if the IDX procedure was ever medically necessary and the ONLY possible option. Their conclusion was No - the IDX procedure is never the ONLY medically sound option.
So when the Act gets to the SCOTUS, the test is "Does this Act prevent a woman from having an abortion" - since the IDX procedure is never medically necessary (as per Congress) the answer is No, the Act never prevents a woman from receiving a safe abortion.
Kennedy went on to say that if there were to be a specific case to challenge the Act, because there was a specific woman who's only medically sound choice was an IDX abortion, then that would be a valid legal challenge to the Act.
Of course he continued on to say that it doesn't really matter though, since the Act contains a clause that permits an IDX abortion if it is the only medically safe choice. (Which isn't possible, because Congress said so)
Do the Justices wish to have an opinion on other medical procedures? If so, I have a trick knee for which my doctor has prescribed ice and rest. If the Justices would prefer I use ibuprofen, I could send them my medical file to review.
What might happen Ex-drone is that Congress will call a panel to see if there is ever an acceptable alternative to ibuprofen (which as you know, is morally objectionable). Since they will learn that ice and rest is always a safe alternative to ibuprofen, they will easily pass a law outlawing ibuprofen (except when it's medically necessary, which as we know, it never is - just take ice and rest). The Supreme Court will then uphold that law, since your right to trick knee treatment has not been infringed upon!
They don't want your medical records - they're not doctors! They just regulate doctors. ;)
There are many statutes that can be applied in unconstitutional ways, but are not struck down. A statute that regulates alcohol consumption can theoretically be used to prohibit a Seder or communion. Are alochol restrictions unconstitutional too, simply because somebody, somewhere, might have his or her constitutional rights infringed. Similarly, there are many statutes and regulations that affect health care procedures (like who can administer them), including drugs. Ibuprofin (and silicone breast implants) have been regulated by the government for years. Why, only now, are you bothered that a state law affects medical care.
A womans body is a private property.
And in a democratic society, human beings are supposed to be free and to have rights.
One of the fundamental rights a democratic society should accord a woman is the right to decide what to do with her body, which includes her pregnancy.
A woman should have the right to decide whether to keep a pregnancy or to terminate it.
A fetus is not yet a human until the mother gives birth to him/her.
Therefore while in the womb, the fetus is part of the mothers body and her possession.
For this reason, it should be unconstitutional, illegal, and undemocratic for the state or the legislature or the courts to keep interfering in a womans right to do as she pleases with her body and also her pregnancy.
What they should be doing is creating circumstances which should reduce the possibilities of unwanted pregnancies.
Ikey Benney (The Immortal)
I am a young adult in college with no kid, but I feel that as a women I should have the right to terminate or proceed with with my pregneancy! The government shouldn't be able to make that option for me or anyone else for that matter. The government say's that they will alow an abortion if the womens health is in danger and I agree with that, but if a women gets pregnant can't take care of the child what are they going to do? So Bush Let me ask you if you were a women wouldn't you want to have the right to keep your baby? ANSWER THAT