8th Circuit Strikes Down Partial Birth Abortion Law
Posted on Sat Jul 09, 2005 at 10:07:55 AM EST
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The U.S. Court of Appeals for the Eighth Circuit yesterday in Carhart v. Gonzalez (pdf) affirmed the District of Nebraska and struck down the Partial-Birth Abortion Ban Act adopted in November 2003, and signed into law with appropriate conservative fanfare. It barred a method of abortion generally used after the first trimester without regard to preservation of the health of the pregnant mother, and that was its flaw. Under the Act, a partial birth abortion was a two year felony for the physican. 18 U.S.C. § 1531(a). See the N.Y. Times story here.
The Eighth Circuit is not, by any means, a liberal court. It is heavily stacked with Republican appointees. This panel had a Reagan senior judge, a Bush I, and a Clinton appointee (2 of 11 active judges are Republican appointments).
The Times article notes that this is the first appellate ruling on this statute, and it comes right at the time Justice O'Connor's vote would be missing when [and not if] the case gets to the Supremes, which it will.
What can we expect with political and procedural maneuvering? What happens next?
We can expect the government to file for a petition for rehearing en banc in the Eighth Circuit which will buy them an extra month or two on the cert petition, the length depending upon whether they seek extra time to file for rehearing, allowing more time for O'Connor's successor to be confirmed.
The decision date was July 8th, so, without a petition for rehearing, a cert petition would be due on October 7th with the reply due November 10th or so (because of the mailing rule), and O'Connor might just still be there, depending upon how long the confirmation process takes; i.e. whether it turns into a battle that drags on into the new Supreme Court Term.
Odds of a cert grant are unknown. There are two factors at play on that question: There is not yet a conflict in the circuits, a surer reason for a cert grant, but, an activist conservative Supreme Court may want to take up the case without any need for a conflict, just to overrule Roe v. Wade.
And this is what really galls me: A conservative can rant all day about 'activist judges,' but they are following their conception of 'original intent' when it is an issue that is near and dear to their political agenda and they are on the losing side. The Schiavo case is a bad enough example, where 80 years of precedent made the Terry Schiavo Act unconstitutional on its face. No matter to the conservatives in America: The judges were activist for not doing what they wanted. It was as simple and as devious as that.
A nonlawyer has no clue what an 'activist judge' is. To me, it is one that always upholds the government position, no matter how untenable or baseless the government's position. But I have bias. You are free to disagree with me, if you have ever dealt with and been slapped around by an activist judge.
Roe v. Wade loomed large already. Now it is larger because there is a case on its way for early in the 2005-06 Court Term. And the stage is set for the 'litmus test' questions during the confirmation hearings. 'Does stare decisis mean anything to you, or are you going to do what the political Right wants on abortion?'
Does this neutalize Gonzalez as a nominee? He'd have to recuse, leaving eight votes. He's not right enough for the Right, however, who consider this nominee their birthright.
In the Supreme Court, the case will be known as Gonzalez v. Carhart.
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