Posted on 06/22/2003 2:12:10 PM PDT by Carthago delenda est
The writer is one of the lawyers who in 2000 successfully argued before the U.S. Supreme Court in the case of Stenberg vs. Carhart, in which the court struck down a Nebraska law against the procedure ofter termed partial-birth abortion.
On June 4, the U.S. House of Representatives approved a bill banning so-called partial birth abortions - just three years after the U.S. Supreme Court struck down a similar Nebraska ban. The bill, which is similar to one already passed by the Senate, is expected to be signed by the president shortly.
Proponents of the bill have been working overtime to give the impression that the only people who could oppose such bans are extremists. The reality, however, is far different. No fewer than 50 federal and state court judges in 21 lawsuits - judges appointed by Democrats and Republicans alike - have examined what these laws actually do and have held that they are unconstitutional.
In Stenberg vs. Carhart, the Supreme Court - the final arbiter of what our Constitution protects - ruled that Nebraska's law had two fatal flaws. While its supporters had claimed the law would ban only one post-viability method of abortion, the court ruled that it actually would ban the safest and most common methods of abortion starting at the beginning of the second trimester of pregnancy - long before fetal viability.
In addition, the court ruled that the law's failure to make any exception to protect a woman's health violated one of the core principles of Roe vs. Wade - that states cannot endanger women's health. A ban without a health exception, the court held, would endanger women because it would prevent the physician from performing the method of abortion that was the safest for a particular woman. Rather than fixing this fundamental defect, Congress simply added a "finding" that the banned procedures are never warranted for health reasons. In cases stretching back to 1803, however, the Supreme Court has consistently held that lawmakers can't just ignore rulings they dislike by adopting their own "findings."
As counsel to Dr. LeRoy Carhart - the Bellevue physician who challenged the Nebraska law - and as part of the team of lawyers that successfully challenged similar statutes in 13 other states, I am experiencing a kind of legal deja vu. The Supreme Court's decision in Carhart was the culmination of a 6-year battle and resolved these issues. So why are we now faced with the prospect of going back to the courts on the exact same issues? Because supporters of this bill have simply chosen to ignore the court's decision.
The new federal bill suffers from the same two flaws that doomed Nebraska's law, as if Stenberg vs. Carhart never happened. Once again, rather than limiting the ban to a single procedure, the sponsors have written a ban so broad that it would criminalize the safest and most common methods of abortion starting at the beginning of the second trimester. Even more remarkable perhaps, the sponsors have completely ignored the Supreme Court's holding that any ban must contain a health exception. In essence, its authors have put a new coat of paint on a condemned house and are hoping that no one notices.
Why would the sponsors promote and President Bush pledge to sign an unconstitutional bill? It's hard to escape the conclusion that their real purpose is to erode further the legal protections for women's right to control their bodies and lives. And that they are restarting the legal battle in hopes that, by the time the fight over this new bill reaches the Supreme Court, the court's composition will have changed. With the current Congress and president, anti-choice activists are optimistic that, in the event of an opening on the court, any new appointment would tip the balance against the right to choose abortion.
The Center for Reproductive Rights is poised to fight this law once more. With Supreme Court precedent on our side, I am confident that we can win in the lower courts. However, just like my opponents, I am all too aware that the appointment of a new justice could spell the end of Carhart and Roe vs. Wade, both of which are currently hanging by a one-vote majority.
Smith is director of the Domestic Legal Program of the Center for Reproductive Rights.
I believe the 14th amendment says "born or naturalized". That's pretty brutal as far as a precise and self defining term goes. That was the pivot of the Roe ruling, wasn't it, the 9th amendment perviewed throught the 14th amendment's specification of "born" removing legal protection for the unborn?
All too often, courts will leave tough decisions to those they know must follow, if for no other reason than to ensure their place in history as a team-player.
I predict that the next appointee to the SCOTUS will fall somewhere between Stevens and Scalia.
There will be a good chance for us to see the first Hispanic nominee; just think what that would do for the voting bloc.
How do you reconcile the many states that have fetal homicide laws? If it's not a human being, it isn't homicide, is it ...
The embryo implanted in the uterine lining is actually maintaining better homeostasis through its self-constructed (not mother constructed) placental organ than a crib-bound infant.
If I give you sufficient pavulon and flurothane you will cease to be sentient while I maintain your breathing via a ventilator.
To stop the lifetime begun at conception, you would have to kill the alive human being (even if by neglect in a petri dish or D&C of the uterine lining or dialation and dismemberment or dialation and extraction with evacuation of the cranial region via cannula and suction) ... which is what (abortion) you appear to favor as the way to deal with difficult societal problems.
Many of you once you've outlawed abortion will look around, get all teary eyed and cry like good socialists "WILL SOMEBODY THINK ABOUT THE CHILDREN!!!" Then we'll be wallowing in more socialism, but no child will be left behind.
Nope. Hey, I'm raising two grandkids because of my beliefs. I have already put my money where my mouth is.
It is about morality for you, it's about money for me and when I have one, money for my family.
It's about money for me, too. Money I pay in in taxes which the state requires, money which will be used to counsel for and perform an act I consider to be murder most foul. Yet you would contend I have no right, moral or otherwise to dictate how the money is used which would be forcibly taken from me were it not surrendered, in order to murder infants in the womb.
I don't want to be forced to support the children that will be brought into the world because of your squeamishness about abortion.
When abortion was not readily available on demand, there was a cultural bias against having children out of wedlock, and people were more careful about concieving children. Not to worry, now, you can always vacumn the little bastard out later--in shreds? Why not simply avoid the situation in the first place? No incentive.
The rich will be able to fly out to the Netherlands to get an abortion, while Jane Doe from the trailer park will have to have her baby.
I guess Jane Doe fron the trailer park will just have to live a more virtuous life (or at least more careful) then. Just because someone has little money does not mean they are lacking in virtue. The rich have always had options not available to the rest of us, and are often worse off for it.
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