Skip to comments.Court: abortion law unconstitutional
Posted on 01/31/2006 12:54:25 PM PST by Jhohanna
SAN FRANCISCO - An appeals court ruled Tuesday that the federal law banning 'partial-birth' abortion is unconstitutional, saying the measure is vague and lacks an exception for cases in which a womans health is at stake.
(Excerpt) Read more at msnbc.msn.com ...
I agree that it's not a done deal. But too, the announcement of a decision to grant or deny cert has been delayed - read into that what you want, I read nothing into it ;-)
And the various circuits (2nd, 8th and 9th) are in agreement as to the ultimate outcome, differing only in their reasoning. There is no controversy between the circuits as to outcome.
8th Circuit case is Gonzales v. Carhart ... lots of material on the web for that one. I haven't searched for the 2nd and 9th Circuit cases. A good project for this evening maybe.
Nice try with the child porn, but the act of making the porn is illegal, and one can make the act of viewing such illegal also. That isn't about publishing but about content.
Meanwhile, SCOTUS upheld McCain-Feingold, so that is where your path leads.
Plessey was overturned by Brown. No amendment needed.
Precedent can be overturned by a new ruling, especially if the precedent was as poorly-grounded as Roe was. Roe was in turn made possible by Griswold, which used an activist reading of the 9th that was completely opposite the intent and position of the 9th next to the 10th. The 9th is a constraint on federal power - not a means to give the fedgov powers to find rights and use that finding to overturn state laws.
So we don't need an amendment - just LITERAL reading of the Constitution.
Because the HEALTH exception is no limitiation.
"Health" is whatever one doctor says it is.
Mental health of the mother - health exception.
Mental health of the mother = the mother will be unhappy if she can't get an abortion.
Mother will have post natal cramps and usual pains; doesn't want them: health exception.
Mother doesn't want stretch marks from pregnancy. They're permanent scars. Health exception.
The "health exception" is the general discretionary rule that means, currently, abortion at will, without any restrictions, until full term labor, because what constitutes a health exception is entirely in the opinion of a single doctor and the woman, and is not subject to any review.
Congress did not mean to pass a symbolic law that meant nothing. They meant to pass a law that would stop partial birth abortions. Everyone involved in the politics of abortion knows that "mother's health" is the euphemism for the mechanism that means "abortion at will". That's why they didn't put it there.
And that means that the issue keeps being driven before the courts. And will keep on being driven before the courts, until the courts are finally sufficiently packed with right wingers that they will rule the opposite way on the same facts, so that where 30 precedents say that there is a health exception, the new precedent will say there isn't.
So, WAS cert. granted?
As you've admirably stated, there is no middle ground. My question is why you can't choose a side.
If it is a legitimate "decision," then any choice is legitimate, but if one of the possible decisions is murder, how is it a legitimate choice for the individual?
"Nice try with the child porn, but the act of making the porn is illegal, and one can make the act of viewing such illegal also. That isn't about publishing but about content."
I am dreadfully sorry, but the Constitution says, in black and white, that Congress shall pass NO LAW infringing the freedom of the press.
Infringing doesn't just mean "you can't publish". It's wider ranging than that. "Infringing" is not simply "prohibiting". It means interfering with.
Pass a law that says you can't READ child porn, and you are infringing upon the freedom of the press. Pass a law that says you can't MAKE child porn, and you are infringing on the freedom of the press, just as surely as you would be if you said to reporters that they can publish any stories they like, but they cannot take photographs or notes. All of that infringes on the freedom of the press.
You are INTERPRETING the language of the Constitution to say what it does not say. What it says, in black and white, is that the Congress can't pass any laws that get at press freedom directly or indirectly. Anything that INFRINGES, is unconstitutional, by a plain-language read of the First Amendment. You don't like that answer, so you're creating a tricky interpretation that lets you suppress what is odious.
And by so doing, you are doing what every judge and other official does. You criticize them for doing it, but that's only because they do it in a way you disagree with.
The Constitution has to be interpreted. Read strictly literally, it leads to strange results which the drafters certainly didn't intend, and which nobody wants.
"No means no", a Supreme Court justice once wrote.
You're suggesting that, when it comes to child porn, the "no" doesn't apply. But plainly it DOES, if the First Amendment is read in plain English. The trouble is that's an atrocious, evil result, and we can't let that happen. The Constitution is not a moral suicide pact. We can interpret it to allow infringement of the freedom of the press when it comes to child porn, and we'd better.
Is that a slippery slope?
No more than strict literalism is.
You cannot get away from the need to interpret words.
A LITERAL reading of the Constitution does not tell you what the 9th Amendment MEANT. It only tells you what it SAID. A LITERAL reading of the Constitution ignores the history of the enactment, because that history is NOT part of the text of the Constitution.
And a LITERAL reading of the Constitution will force you to allow child porn, and to either allow people to have missile batteries in their basements, if they want them, or allow the government to register all firearms, depending on how you interpret those words "well regulated" and "shall not be infringed".
LITERAL readings of the Bill of Rights still gets to contrary results.
We can start with the First Amendment and then move to the Second for examples of this.
What do those words MEAN? "Militia". "Infringment". How much of a reduction is "infringement"? You argued above that preventing people from either taking child porn pictures or reading them is not an infringement of the freedom of the press. Of course it is, by any standard reading of the word "infringement".
We can go through things LITERALLY, if you'd like.
You won't stay literal for long.
You'll start insisting on history, which is NOT the "literal text of the Constitution", but is interpretive material that is totally outside of the Constitutional text. That's fine. In fact, it's a recognition that LITERAL reading and application of the Constitution leads straightaway to a MESS in the Bill of Rights, and takes us to results that are so revolting that none of us wants them.
The District Court found the Federal Act unconstitutional, due to a failure to find a medical concensus that there is no circumstance in which any woman could potentially benefir from the procedure. A division of medical opinion exists, even according to the testimony on which Congress relied in passing the act. "Such a division means the Constitution requires a health exception." Following the rule of law set forth in Stenberg.
National Abortion Federation v. Ashcroft, 330 F. Supp. 2d 436 (S. D. N. Y. 2004)
Judge Chester J. Straub filed a dissent in the Circuit Court Appeal of January 31, 2006. From the link below, enter "National Abortion Federation" as the search term.
National Abortion Federation v. Gonzales, Docket No. 04-5201-cv (2nd Cir. 2006)
Carhart v. Ashcroft, No. 4:03CV3385 (D.Neb. 2004)
Gonzales v. Carhart, 04-3379 (8th Cir. 2005)
In the Supreme Court, Gonzales v. Carhart, 05-380
Supreme Court DOcket for 05-380
PETITION FOR A WRIT OF CERTIORARI / Appendices
ON PETITION FOR A WRIT OF CERTIORARI - REPLY BRIEF FOR THE PETITIONER
American Center for Law & Justice - Amicus Brief in Favor of Grant of Certiorari
Planned Parenthood Federation of America v. Ashcroft, CV-03-4872-PJH (N.D.Ca. 2004
Planned Parenthood Federation of America v. Gonzales, No. 04-16621, (9th Cir. 2006)
Striking down Virgina PBA law by the US District Court for the Eastern District of Virginia.
Richmond Medical Center for Women v. David M. Hicks ...
Northland Family Planning Clinic, Inc. v. Cox
Federal Court Strikes Michigan Abortion Ban for Third Time
Reproductive Rights Groups Hail the Decision
New York | September 15, 2005 | More Info
Detroit, MIThe American Civil Liberties Union, the Center for Reproductive Rights, and the Planned Parenthood Federation of America today hailed a decision by a federal court striking down the third Michigan ban on abortion enacted by the Michigan Legislature in the past decade. The groups learned of the decision late last night.
"This ruling is adding to the long list across the country reaffirming that decisions about medical care should be between a woman and her doctor, not politicians," said Kary Moss, ACLU of Michigan Executive Director. "Michigan legislators should think of the phrase, 'three strikes youre out,' and move on to dealing with the problems of our state that truly need their attention."
Federal District Judge Denise Page Hood held in the decision dated September 12 that the law in question, the Legal Birth Definition Act, "creates a ban on actions at the heart of abortion procedures from the earliest stages of pregnancy, whether used to perform induced abortions or to treat pregnancy loss."
Thank you! I'm marking that for later. That's a lot of homework! :)
Uh, yes, it does. Especially when it is read along with its neighbor the 10th.
However, that in turn does not prohibit STATE laws, since the First starts with "Congress shall pass no law..."
And, once again, the act of creating the child porn is the crime - just as printing classified information in a newspaper can be a crime - not because you printed something, but because of the action of releasing classified information.
So try YET again.
"Uh, yes, it does. Especially when it is read along with its neighbor the 10th.
I read the same words and observe that it does not.
There's an "or" in there. Which way does the "or" cut?
And who says?
We're both interpreting words here. And how those words cut depends on our opinion of them.
I observe that Alito cast his first vote today, with the rest of the court, granting a stay of a death penalty execution to allow further judicial review of the case.
Prediction: this new court is going to go even slower and more methodically on death penalty cases than the old one.
Not in the favor of the feds.
Try again (this is getting old).
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