Posted on 12/18/2003 5:25:40 PM PST by Federalist 78
CINCINNATI – An Ohio law that bans a controversial late-term abortion procedure is constitutionally acceptable, and the state can enforce it, a federal appeals court ruled Wednesday.
The 6th U.S. Circuit Court of Appeals ruled 2-1 to reverse a lower court's ruling against the law, which had been challenged before it could take effect in August 2000.
U.S. District Judge Walter Rice of Dayton ruled in 2001 that Ohio's law was unconstitutional because it wouldn't allow partial-birth to be used when it is "safer" for a patient.
Abortion provider Dr. Martin Haskell, who sued three years ago to challenge Ohio's law, will appeal Wednesday's ruling, said his lawyer, Alphonse Gerhardstein.
Ohio Attorney General Jim Petro was pleased with the ruling, spokesman Mark Gribben said.
In February 2002, the Bush administration filed arguments in support of Ohio's law. Puncture That Infant's Skull
Rice ruled that the law would not allow the dilation-and-extraction procedure to be used when it is safer for a patient than other alternatives. The procedure involves pulling the fetus partially out of the uterus feet first. The skull is then punctured and the brain suctioned out, causing the skull to collapse and easing passage through the birth canal.
Ohio had argued that its law contains an exception that would allow the procedure when necessary, in reasonable medical judgment, to preserve the mother's life or health.
But Rice said he found that argument "unpersuasive" because the procedure could be used only on patients who have conditions that would cause them irreversible harm if other abortion techniques were used.
Appeals judges James Ryan and Alice Batchelder said Ohio's law met standards set by the U.S. Supreme Court in June 2000 that allow doctors to use the abortion method when necessary to protect the mother's health.
The Supreme Court set the standards when it threw out a Nebraska law that banned dilation-and-extraction late-term abortions.
Another federal appeals court used the Supreme Court's 2000 ruling to review a state law. The 3rd U.S. Circuit Court of Appeals cited the ruling when it decided in July 2000 that a New Jersey law banning the procedure was unconstitutional.
Gerhardstein successfully argued against a similar Ohio law that Rice and the appeals court struck down six years ago. Gerhardstein said the appeals court's decision Wednesday ignores that case.
The courts, rejecting the earlier ban as unconstitutionally vague, argued that it could have been used to prohibit other legal abortion procedures. State lawyers said the current law was more narrowly defined to ban the objectionable procedure.
Article III, Section 2 - The Washington Times: Editorials/OP-ED In the 107th Congress (2001-2002), Congress used the authority of Article III, Section 2, clause 2 on 12 occasions to limit the jurisdiction of the federal courts.
Sen. Thomas A. Daschle, South Dakota Democrat, used the exception authority of Article III, 2.2 in order to cut some timber in South Dakota.
Reining In the Court - The New American - July 28, 2003 By simple majority vote, Congress could pass an act denying federal jurisdiction over social issues of any kind, such as abortion, pornography, and homosexuality. This would leave the state legislatures free to enact (or, in most cases, re-enact) laws on those matters reflecting the moral consensus of their constituents. This would leave the well-funded leftist network of legal agitators - the ACLU, et al. - without effective recourse, since they would have no access to their longtime allies in the federal judiciary. Rather than use the judicial system as a detour around representative government, the cultural left would have to contend, on equal terms, in state legislatures.
The method of killing a human child–one cannot even accurately say an entirely unborn human child–proscribed by this statute is so horrible that the most clinical description of it evokes a shudder of revulsion. And the Court must know (as most state legislatures banning this procedure have concluded) that demanding a "health exception"–which requires the abortionist to assure himself that, in his expert medical judgment, this method is, in the case at hand, marginally safer than others (how can one prove the contrary beyond a reasonable doubt?)–is to give live-birth abortion free rein. The notion that the Constitution of the United States, designed, among other things, "to establish Justice, insure domestic Tranquility, . . . and secure the Blessings of Liberty to ourselves and our Posterity," prohibits the States from simply banning this visibly brutal means of eliminating our half-born posterity is quite simply absurd.
Today’s decision, that the Constitution of the United States prevents the prohibition of a horrible mode of abortion, will be greeted by a firestorm of criticism–as well it should. I cannot understand why those who acknowledge that, in the opening words of Justice O’Connor’s concurrence, "[t]he issue of abortion is one of the most contentious and controversial in contemporary American society," ante, at 1, persist in the belief that this Court, armed with neither constitutional text nor accepted tradition, can resolve that contention and controversy rather than be consumed by it. If only for the sake of its own preservation, the Court should return this matter to the people–where the Constitution, by its silence on the subject, left it–and let them decide, State by State, whether this practice should be allowed. Casey must be overruled.
Wednesday, July 23, 2003
WASHINGTON - House Majority Leader Tom DeLay (R-Texas) today joined Representative Lamar Smith (R-Texas) and Rep. Steve Chabot (R-Ohio) in announcing the formation of the House Working Group On Judicial Accountability. The group will work to encourage responsible federal judiciary, and identify and prevent judicial activism.
"Co-chairs Lamar Smith and Steve Chabot have recruited a core of smart, tough and aggressive members, and based on the early meetings it's clear that when it comes to judicial abuses they're going to take no prisoners," DeLay said.
"We're going to address the problem of judicial activism at its roots and restore the U.S. Constitution as the North Star of the American judiciary," DeLay said.
This House working group will ensure that judges fulfill their duties without bias and without substituting their philosophy for the law. Some of their duties include:
Identify bad laws that invite judicial activism and hopefully recommend legislation that will prevent it in the future; Involve the House in more federal court nominations because we believe America deserves a United States Senate that will seriously consider this President's mainstream and qualified nominees and allow them a vote; Work with the Judiciary Committee on its vigorous oversight of the federal court system. In addition to Co-Chairs Smith and Chabot, working group members include Representative Todd Akin (R - Mo.), Rep. Marsha Blackburn (R - Tenn.), Rep. John Carter (R - Texas), Rep. John Culberson (R - Texas), Rep. Mario Diaz-Balart (R - Florida), Rep. Tom DeLay (R - Texas), Rep. Tom Feeney (R - Fla.), Rep. Walter Jones (R - N.C.), Rep. Steve King (R - Iowa), Rep. Marilyn Musgrave (R - Colo.) and Rep. Joe Wilson (R - S.C.).
Congressman Lamar Smith : 21st District of Texas
Congressman Steve King - Iowa 5th Congressional District - ...
CNN.com - Third federal judge halts abortion ban - Nov. 6, 2003
Disclaimer: Opinions posted on Free Republic are those of the individual posters and do not necessarily represent the opinion of Free Republic or its management. All materials posted herein are protected by copyright law and the exemption for fair use of copyrighted works.