Alito: The Chickens Come Home To Roost; Late Term Abortions Ban Ruled Constitutional

Via AdamB, the SCOTUS upheld a federal ban on late term abortions. SCOTUSBlog reports:

Dividing 5-4, the Supreme Court on Wednesday gave a sweeping -- and only barely qualified -- victory to the federal government and to other opponents of abortion, upholding the 2003 law that banned what are often called "partial-birth abortions." Justice Anthony M. Kennedy wrote for the majority in the first-ever decision by the Court to uphold a total ban on a specific abortion procedure -- prompting the dissenters to argue that the Court was walking away from the defense of abortion rights that it had made since the original Roe v. Wade.

. . . Justice Ruth Bader Ginsburg, speaking out in the courtroom for the dissenters, called the ruling "an alarming decision" that refuses "to take seriously" the Court's 1992 decisions reaffirming most of Roe v. Wade and its 2000 decision in Stenberg v. Carhart striking down a state partial-birth abortion law.

Ginsburg, in a lengthy statement, said "the Court's opinion tolerates, indeed applauds, federal intervention to ban nationwide a procedure found necessary and proper in certain cases by the American College of Obstetricians and Gynecologists. For the first time since Roe, the Court blesses a prohibition with no exception protecting a woman's health." She said the federal ban "and the Court's defense of it cannot be understood as anything other than an effort to chip away at a right declared again and again by this Court -- and with increasing comprehension of its centrality to women's lives. A decision of the character the Court makes today should not have staying power."

Kennedy's vote with the majority; Roberts and ScAlito joined Scalia and Thomas, makes clear that those of us who fought against both the Roberts and Alito nominations were right to expect this from those nominees. Roe and Casey will not survive if this Court gets to decide the issue.

Kennedy tries to compromise the issue by saying:

The proper way to make a challenge, if an abortion ban is claimed to harm a woman's right to abortion, is through as as-applied claim, Kennedy wrote. His opinion said that courts could consider such claims "in discrete and well-defined instances" where "a condition has or is likely to occur in which the procedure prohibited by the Act must be used." Kennedy said the Court was assuming that the federal ban would be unconstitutional "if it subjected women to significant health risks." He added, however, that "safe medical options are available." His opinion noted that the Bush Administration "has acknowledged that pre-enforcement, as-applied challenges to the Act can be maintained."

So Kennedy is inviting fact based challenges to the law? And in the meantime, women lose constitutional right to make private decisions with their doctors. Outrageous.

Ralph Neas of PFAW said:

"Today's 5-4 decision is further proof that the confirmation of right-wing nominees to the Supreme Court has disastrous consequences for Americans' rights and liberties."

"The replacement of moderate Justice Sandra Day O'Connor with ultraconservative Justice Samuel Alito has brought the Court to the brink of judicial disaster.

“President Bush’s Supreme Court nominees are weakening Americans’ rights and legal protections. Today’s decision will energize a crucial public conversation with presidential candidates about the importance of future Supreme Court justices.”
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  • Display: Sort:
    This is not a good comment (5.00 / 1) (#5)
    by Big Tent Democrat on Wed Apr 18, 2007 at 11:28:53 AM EST
    You write "While legally he or she may not be a person, it is very much like a baby to me. In fact, depends on at what point in the third trimester, the baby may even survive if taken out and given appropriate medical care."

    That is how YOU feel. The whole point of the right to choose, indeed, the right to privsacy, is that this is a decision for the individual and her doctor.

    What YOU think should not restrict how others act.

    UNLESS you are saying the fetus is a person deserving of constitutional rights.

    The Court havs ruled the opposite.

    The decision today is that this law does not impose an undue burden on a woman's right to choose.

    Even you must agree that the decision is utterly ridiculous. It clearly imposes an undue burden on that decision, so long as you accept that a fetus is not a person.

    IF you believe it is a person then of couse outlawing not only thrid trimester abortions, but ALL abortions, including in pregnancies that result from rape or incest, should be banned.

    This is PRECISLEY chipping away.

    Your comment is way way off the mark.  

    abortion and "health" (none / 0) (#1)
    by diogenes on Wed Apr 18, 2007 at 10:44:01 AM EST
    As a psychiatrist, I can assure you that it is immensely easy to manufacture "health-based" reasons for anything.  If you doubt this, then open up all the third trimester abortion medical records with personally identifying information removed and submit them to the Supreme Court or to the press for review.  I wish people would settle for first two trimester abortions on demand, third trimester only to prevent the DEATH of the mother, and let this matter rest.  Right now all congress and the press talks about is this, Gonzales, Scooter Libby/Rove, and Iraq-really a spectacular rope-a-dope by the lame duck Bush to prevent any attention from being paid to any substantial social or environmental issues.

    A Ban on LAte Term Abortions (none / 0) (#3)
    by Big Tent Democrat on Wed Apr 18, 2007 at 10:46:17 AM EST
    is what you want and what the SCTOUS upheld.

    Why are you complaining?

    I'm interested what your reaction will be if the SCOTUS overturns Casey which it is one vote from doing.

    And Kennedy is clearly prepared to chip away NOW.


    As a psychotic ... (none / 0) (#19)
    by Sailor on Wed Apr 18, 2007 at 05:59:38 PM EST
    As a psychiatrist, I can assure you that it is immensely easy to manufacture "health-based" reasons for anything.  
    but you endorse solitary confinement and a bread and cabbage diet for your mentally ill patients.

    Hmm, as a health care professional I think you should be involuntarily committed because you are a danger to the community.


    2004 election had its (none / 0) (#2)
    by CA JAY on Wed Apr 18, 2007 at 10:45:45 AM EST
    consequences, sigh.  All the more reason Kerry should have fought the fraud in Ohio instead of rolling over.

    Casey & Carhart & Kennedy (none / 0) (#6)
    by RedHead on Wed Apr 18, 2007 at 11:38:58 AM EST
    1. how does Kennedy bridge his position in Casey with his position in both Carhart cases?

    An aside, this of course, will never effect Jenna Bush and her ilk (Paris, Britney).  They will always have intact D/C available.

    By the use of (5.00 / 1) (#8)
    by Big Tent Democrat on Wed Apr 18, 2007 at 11:55:41 AM EST
    cognitive dissonance.

    Eh? (none / 0) (#9)
    by Gabriel Malor on Wed Apr 18, 2007 at 11:55:52 AM EST
    They will always have intact D/C available.

    Wha? In this country?


    No PROFANITY (none / 0) (#10)
    by Big Tent Democrat on Wed Apr 18, 2007 at 11:56:11 AM EST
    Please rewrite your comment because I will have to delete this one.

    Leaving aside the verdict (none / 0) (#13)
    by jimakaPPJ on Wed Apr 18, 2007 at 12:11:40 PM EST
    I've seen worse than this time and again.

    Are you sure your anger at being disagreed with is not driving you??


    Read it again, sam. (5.00 / 1) (#15)
    by Gabriel Malor on Wed Apr 18, 2007 at 12:15:05 PM EST
    BTD wasn't being disagreed with by the no-naught-words-rule-breaker.

    Narius (none / 0) (#11)
    by Gabriel Malor on Wed Apr 18, 2007 at 11:57:46 AM EST
    Others have said it, but the issue here is abortions during the second trimester. It is also important to note that the law has moved beyond Roe's rigid trimester system. The issue now is whether the abortion is pre- or post-viability.

    Several things to be done. (none / 0) (#12)
    by robotalk on Wed Apr 18, 2007 at 11:58:13 AM EST
    New legislation throwing out the bill underlying the opinion.  Remember, as long as we hold the legislature, Roe is safe.  Indeed, legislation saying that medical procedures and techniques are solely to be left to the discretion of the informing doctor and the consenting patient seems called for.  

    Another reason for people to vote democratic in 2008.  But, yeah, we should have filibustered.

    Overlooked (none / 0) (#14)
    by Gabriel Malor on Wed Apr 18, 2007 at 12:13:37 PM EST
    I think that folks are missing another important part of this decision. The Court really slaps down the lower courts near the end of the majority op:

    The considerations we have discussed support our further determination that these facial attacks should not have been entertained in the first instance. In these circumstances the proper means to consider exceptions is by as-applied challenge.

    I wonder what effect this will have on abortion facial attacks.

    But this was contrary to Sternberg (none / 0) (#16)
    by Big Tent Democrat on Wed Apr 18, 2007 at 12:15:59 PM EST
    How can Kennedy slap down the lower courts for following binding precedent.



    The only opinion that should matter ... (none / 0) (#17)
    by Sailor on Wed Apr 18, 2007 at 12:54:41 PM EST
    ... is the one between a woman and her doctor:
    American College of Obstetricians and Gynecologists:

    The intact variant of D&E offers significant safety advantages over the non-intact method, including a reduced risk of catastrophic hemorrhage and life-threatening infection. These safety advantages are widely recognized by experts in the field of women's health, authoritative medical texts, peer-reviewed studies, and the nation's leading medical schools.

    heck, even bush has said that:

    the best healthcare decisions are made not by government and insurance companies, but by patients and their doctors.

    Legislature (none / 0) (#18)
    by diogenes on Wed Apr 18, 2007 at 04:05:29 PM EST
    Go ahead and pass laws making abortions legal in the legislatures, as should have happened instead of Roe.  Then there will be no problem.  In 2009 the Democratic majority and president can pass all sorts of laws allowing federal funds to be used.  The majority of states will be Democratically controlled if there are state's rights matters.  For the cost of millions otherwise spent in campaign dramas maybe George Soros or Oprah can endow a fund to let women in South Dakota or other such states fly to Minnesota for abortions on that "underground railroad".  Heck, if third trimester abortions are so rare people can use the Oprah fund to go to Canada.  Please solve the problem instead of venting about filibusters.