Posted on 02/01/2006 4:41:30 PM PST by Raquel
Feb 1, 3:24 AM EST
Appeals courts uphold abortion finding
By LARRY NEUMEISTER Associated Press Writer
NEW YORK (AP) -- Two federal appeals courts declared a law banning a type of late-term abortion unconstitutional, saying it lacks an exception for when a woman's health is in danger.
The rulings on the Partial Birth Abortion Ban Act are expected to be appealed to the U.S. Supreme Court, recently reconfigured with two new justices appointed by President Bush. A similar case from Nebraska already has been appealed.
The 9th U.S. Circuit Court of Appeals in California and the 2nd U.S. Circuit Court of Appeals in Manhattan issued the rulings Tuesday within hours of each other.
"We are reluctant to invalidate an entire statute," 9th U.S. Circuit Court of Appeals Judge Stephen Reinhardt wrote. "However, after considering all of the obstacles to our devising a narrower remedy, we conclude that such is our obligation."
Abortion rights activists see the 2003 law as a fundamental departure from the Supreme Court's 1973 precedent in Roe v. Wade.
The law banned a procedure known to doctors as intact dilation and extraction, and called partial-birth abortion by abortion foes. The fetus is partially removed from the womb, and the skull is punctured or crushed. The procedure is generally performed in the second trimester.
President Bush signed the ban in 2003, but it was not enforced because of legal challenges in several states. The Bush administration has argued that the procedure is cruel and unnecessary, and causes pain to the fetus.
Chief Judge John M. Walker, a relative of former President George Herbert Walker Bush who serves in the 2nd U.S. Circuit Court of Appeals, said the application of the statue "might deny some unproven number of women a marginal health benefit."
"Is it too much to hope for a better approach to the law of abortion - one that accommodates the reasonable policy judgments of Congress and the state legislatures without departing from established, generally applicable, tenets of constitutional law?" Walker wrote.
The New York decision affirmed a 2004 ruling by a judge who upheld the right to perform the procedure even as he described it as "gruesome, brutal, barbaric and uncivilized."
The 2nd Circuit ruling Tuesday was marked by an unusually sharp dissent by Judge Chester J. Straub, who said he believed Congress' determination that the procedure was never medically necessary to protect a women's health was well founded and supported by a lower court ruling.
"Allowing a physician to destroy a child as long as one toe remains within the mother would place society on the path towards condoning infanticide," he said.
Justice Department spokesman John Nowacki said government lawyers were reviewing both rulings and declined to comment further. In the past, department attorneys have said the procedure is inhumane and "blurs the line of abortion and infanticide."
A federal judge in Nebraska also has ruled the ban unconstitutional. The Nebraska ruling was upheld in July by the 8th U.S. Circuit Court of Appeals and has been appealed to the U.S. Supreme Court.
Attorneys for the Planned Parenthood Federation, which brought the lawsuit heard in California, praised the ruling.
"Even though the supporters of this law purported to be banning one particular abortion procedure, the law as the court found would in fact chill doctors from performing virtually any second trimester abortion," said Eve Gartner, senior staff attorney for Planned Parenthood and lead counsel in the 9th Circuit case.
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Associated Press writer Dan Goodin contributed to this report from San Francisco.
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The law states that unborn babies can not be aborted once part of their blob of tissue passes the birth canal. That's the law Congress passed that applies to interstae partial birth abortion. Where in the Constitution do judges get the power to interpret that as other than what it says which is, partially born babies shall not be torn limb from limb?
That's bogus. Your argument might have flown a generation ago, but today the situation you describe simply calls for a caesarian section.
In practice, what you are calling for is the continuation of the current holocaust...just under a different lying pretext.
Juries have the authority to acquite any defendant for any reason. Historically, juries have been made aware of this authority but--being responsible members of the community--juries would generally only acquit defendants for good reasons (the most common, of course, being that they didn't think the defendant committed the crime, but another common one being that the jury did not feel that a conviction would serve the interests of justice).
For example, if the police arrested someone who had just shot a homicidal maniac and arrested him for discharging a firearm in a public park, it would be right and proper for a jury to acquit the defendant no matter how clear and compelling the evidence that he did, in fact, discharge a firearm in a public park.
Although the jury system has at times resulted in some abuses (e.g. in some areas, whites who killed blacks would get acquitted even when proof of guilt was obvious) it served as a check against abusive laws. One of the reasons the right to jury is guaranteed is that it protected many colonists from oppression by the British throne. If a tax was widely unpopular, people might be arrested for evading it but then acquitted by a jury full of people who despised it just as much as the defendant.
Unfortunately, jurors are almost never informed of their right and responsibility to ensure that a conviction would be in the interest of justice. If they were, issues like this "mother's health" nonsense would be a non-factor because juries would naturally refuse to convict doctors who could convince them that their actions were medically necessary.
Jury nullification has nothing to do with my premise which is that juries and judges do not make law, legislative bodies do. A jury can make no law, though they can in indidual court cases nullify the law. I understand that.
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