Posted on 01/05/2006 2:27:01 PM PST by Aussie Dasher
WASHINGTON, January 5, 2006 (LifeSiteNews.com) - On Friday, January 6, 2006, the U.S. Supreme Court is scheduled to decide whether to review a lower-court ruling that has blocked enforcement of the Partial-Birth Abortion Ban Act, a bill signed into law by President George W. Bush on November 5, 2003. The Court may announce its decision on whether to accept the case on January 6, or on Monday, January 9.
In 2000, five justices of the Supreme Court, including soon-to-retire Justice Sandra Day O'Connor, ruled that the abortion right originally created in Roe v. Wade allows an abortionist to perform a partial-birth abortion any time he sees a 'health' benefit, even if the woman and her unborn baby are entirely healthy. (Stenberg v. Carhart, June 28, 2000). This ruling struck down the ban on partial-birth abortion that had been enacted by Nebraska, and rendered unenforceable the similar bans that more than half the states had enacted.
Nevertheless, in 2003 Congress approved and President Bush signed a national law, the Partial-Birth Abortion Ban Act. When he signed the ban, the President called partial-birth abortion "a terrible form of violence [that] has been directed against children who are inches from birth."
The federal law bans "partial-birth abortion," a legal term of art, defined in the law itself as any abortion in which the baby is delivered "past the [baby's] navel . . . outside the body of the mother," OR "in the case of a head-first presentation, the entire fetal head is outside the body of the mother," BEFORE being killed. The complete official text of the law, in a searchable format, is here: http://www.nrlc.org/abortion/pba/partial_birth_abo...
The law would allow the method if it was ever necessary to save a mother's life.
The federal law has faced legal challenges in three different federal circuits, and its enforcement has been blocked by court orders. Federal district courts in all three circuits ruled that the federal law violated the 2000 Supreme Court ruling. In one of these cases, Gonzales v. Carhart, that adverse judgment was affirmed by the U.S. Court of Appeals for the Eighth Circuit. The Bush Administration has asked the Supreme Court to review the Eighth Circuit ruling, and it is that "cert petition" on which the Court will conference on January 6.
"In 2000, five justices of the Supreme Court in effect ruled that Roe v. Wade guarantees the right to perform partial-birth abortions at will," said National Right to Life Committee Legislative Director Douglas Johnson. "Unless the Court accepts this new case and abandons the extreme position it took in 2000, partly born premature infants will continue to die by having their skulls punctured with seven-inch scissors."
Meanwhile, the other two legal challenges to the federal law remain under review by the U.S. courts of appeals for the Second Circuit and Ninth Circuit. In addition, the Commonwealth of Virginia has filed a request for the Supreme Court to review a ruling by the U.S. Court of Appeals for the Fourth Circuit, holding that a similar state law, banning "partial birth infanticide," contradicts the 2000 Supreme Court decision. (Richmond Medical Center for Women v. Hicks)
My gut tells me the Supremes won't take the case.
Great timing - right on the eve of Alito's confirmation hearings!
That's one reason I think they'll pass, because court membership is in flux. The major reason I think they will pass is because not one, not two, but THREE lower courts have said the law is not constitutional. As I say, that's just my gut; I don't know for certain.
Any chance they can defer until Alito is confirmed?
I think they have some leeway on that. The Court reviews a lot more petitions every year than they can possibly decide, and have to choose representative important cases. They do this in committee, led by the Chief Justice, and a case has to get at least 4 votes to be considered.
It'll have a far greater chance of getting those 4 votes NEXT month.
Right in time to kickoff the alito hearings.............
My question in this case is under what authority can Congress enact this ban? Are they using the commerce clause? To say that a PBA ban involves interstate commerce is somewhat stretching it, It would set a precedent for nationalization of the nation's healthcare system. I mean, if Congress can regulate or ban one medical procedure, why can't they do the same for any other? What in the Constitution grants Congress the power to enact the ban?
Second, isn't the conservative position on abortion that it should be left up to the states? I'm all for overruling Stenberg and allowing states to enact bans if they decide, but I don't see what gives Congress the power to require all states to do so. As Scalia and Thomas have said, "A state may proscribe abortion if they choose, but they are not REQUIRED to do so" This ban would require them to do so. This case makes hypocrites out of those who say that abortion should be up to the states. If a GOP Congress can pass this law, in 5 yrs a Dem Congress could pass a law that requires states to ALLOW abortions. They could overturn any state abortion law, even those in pro life states. I wonder if conservatives have thought through the consequences.
IMHO, if cert is granted the SC should rule in such a way that overrules Stenberg but holds this law invalid as a violation of the commerce clause(a la Lopez). It would really be the best of both worlds. It would be a pro life decision and a federalism decision and conservatives would be happy without setting precedent that won't come back to haunt us.
What about the view that holds that legislators have an obligation to protect the innocent from being cruelly murdered?
I agree with you that the federal government should not act on an issue that it has not been given the power to act upon. In those cases the power should be left to the states.
There is only one reasonable argument that I can think of that would constitutionally justify an abortion ban. In the 14th amendment it says that "no person shall be deprived of life, liberty, and property without due process of law." Congress has the power to enact legislation to this end. This argument is not very popular in the court system at present, however it is one possible way to justify such a ban.
That would of course require the SC to hold that a fetus is a "person" and not one of the 117 Justices that has sat on the court has ever done so. Not even Scalia or Thomas. In fact, if you read his Stenberg/Casey opinions Scalia specifically affirms this and says the Constitution does not require a state to ban abortion.
Holding that a fetus is a person per the 14th amendment would also have unknown consequences for laws concerning pregnant women. I don't know if anyone's really thought it through. States could then also conceivably ban pregnant women from smoking, drinking, eating bad foods, engaging in various activities, working, etc... because they all infringe on the rights of the fetus. I'm sure you can imagine any number of scenarios that could arise After all, if the fetus is a person and has rights, it also has protection of the BOR through incorporation. And the woman has those same rights as well. It's really a moral question.
And even if the court so held, which I highly doubt it ever will, the mother also has rights that conflict. How does one decide between the two? Basically the SC would have to decide which life is more imoprtant, whose liberty is more important? That's a question the Constitution provides no answer to. It says everyone has equal protection of the laws. Abortion laws result in unequal protection. The problem with abortion is that if a fetus is a person there's no legal distinction between the two, it's a moral one. It's certainly a difficult choice.
You can only be punished for a crime. Abortion bans turn pregnancy into a 9 month sentence and in that way the state criminalizes pregnancy. It says if you become pregnant it is the equivalent of a 9 month sentence. What crime has the pregnant woman committed to merit the sentence? Alternatively, one could ask what crime the fetus has committed by being conceived and again it's a question of a moral nature, not a legal one.
Keep in mind that even murder is legal if it's done under certain mitigating circumstances. I can't see any thing that would allow for an outright ban on abortion with no life of the mother exception, and even a rape exception could be argued as self defense in some manner. In addition, there's the argument that abortion laws could violate the 4th amendment as an unreasonable seizure of the woman's person by the state. I haven't really thought that through though. The sentence of term could then require a trial by jury according to the BOR, it could be argued that other BOR provisions apply.
I don't know of too many laws where the state can compel a person to suffer health risks. I mean, could a state require someone to sit in a smoking section? Could it force people to drive without a seatbelt? Can it sentence someone to 9 months of "hard labor" for habing committed no crime? The question is what is the crime in becoming pregnant that allows the state to enforce a sentence of forced carrying to term.
I would think that if he has integrity in sticking with his prior opinions Justice Scalia would vote to strike down a federal abortion ban of any kind. Notification requirements/consent and other incidental laws might be a different story.
PBA might be different because at that point it is murder as the baby has been delivered prior to the act.
"Holding that a fetus is a person per the 14th amendment would also have unknown consequences for laws concerning pregnant women. I don't know if anyone's really thought it through. States could then also conceivably ban pregnant women from smoking, drinking, eating bad foods, engaging in various activities, working, etc... because they all infringe on the rights of the fetus. I'm sure you can imagine any number of scenarios that could arise After all, if the fetus is a person and has rights, it also has protection of the BOR through incorporation. And the woman has those same rights as well. It's really a moral question."
I'm glad someone brought this up, because I think if the unborn were recognized as legal "persons" we'd have the law of Unintended Consequences kicking in pretty fast. Inheritance rights for fetuses is an interesting area to muse on, for one. And it's hard to imagine a family dealing with the sorrow of a miscarriage having to deal with an investigation for involuntary manslaughter. Don't poo-poo it and say it couldn't happen.
Or would the state be able to bar the father from making love to his pregnant wife as some form of "aggravated assault" or other felony? Would it be considered "child abuse"? I just think it's a pandora's box. Could they prescribe a diet and anything inviolation would be deemed negligence, the same as if a mother starved her 3 yr old.
Horsehockey. A woman who is pregnant carries another person within her. It is the natural order of things and is not a sentence. Even if she considers it a sentence what right does she have to murder her baby?
If the fetus is human (and it is) and if it is distinct from it's mother (and with separate DNA it most certainly is) and if it is alive (and it is) then it is a person. It's certainly not a dog or a pig or a chicken (no matter what the pro-aborts think)
Marital relations are totally safe for the fetus as long as the mother is comfortable with it. And if she's not then the guy's not going to be making love to her anyway.
I knew if I waited long enough, there'd be some upcoming abortion ruling to explain it.
Do a majority of justices need to agree to hear the case, or just one?
If they agree to hear the case, it will be some time before it actually is presented. The members of the court should be settled before the case would be heard.
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