The Roberts Court Takes on Abortion

[54anickel]

http://www.nytimes.com/2006/11/05/weekinreview/05greenhouse.html?_r=1&ref=weekinreview&oref=slogin

THE arguments the Supreme Court will hear on Wednesday on the constitutionality of the federal Partial-Birth Abortion Ban Act promise much more than a resumption of a familiar debate over a method of terminating a pregnancy.

In defining the permissible limits on access to abortion, only six years after declaring a similar restriction unconstitutional in a case from Nebraska, the court must go a long way toward defining its stance toward precedent, its relationship to Congress, and its view of its own role in the constitutional system. As it decides the new cases, the still-emerging Roberts court will inevitably be defining itself.

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Justice Sandra Day O’Connor, who retired in January, voted with the 5-to-4 majority. No one knows whether either of the two newest justices, her successor, Samuel A. Alito Jr., or Chief Justice John G. Roberts Jr., might step into her shoes. But the fate of the federal law may rest with Justice Kennedy, the only one of the four dissenters who accepts the court’s precedents on the basic right to abortion.

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The libertarian Cato Institute, which provided intellectual ammunition for the Rehnquist court’s federalism revolution, filed a brief describing the federal law as an example of “expansive and intrusive federal regulation” and as an effort by Congress to open “an equilibrium-destroying loophole in the constitutional landscape.” Justice Kennedy has consistently voted with the states’ rights side of the court’s federalism debates.

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[rocktivity]

1. Partial birth abortion can't be constitutional

because there's no such thing.

:headbang:
rocknation

[54anickel]

2. Yep. Here's a "better" link on the topic.

http://www.politicalcortex.com/story/2006/11/3/144655/058

We have been down this road before. And we really shouldn't be going down this road again. Let me start with this term, "Partial-Birth Abortion." There is no such medical procedure as "Partial-Birth Abortion." It is a political soundbite.


The Center for Reproductive Rights brings cases both in the United States and around the world and works with women's health advocates to strengthen laws protecting women's reproductive health. And we don't deal with this issue of "Partial-Birth abortion" anywhere else in the world. And that is because it was created as a political soundbite here, for American politics.

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So, in essence, what the Supreme Court said, and Justice O'Connor was very clear in her concurrence, was that you might be able to draft a constitutional ban on intact D&E's if you did two things. One, you use medical terms. The majority said that it would have been a simple matter for Nebraska to have used medical language that doctors understand when you're hitting them with a criminal law. Two: Justice O'Connor said that you have to have a health exception. If you write these two things into the law you could probably draft a constitutional statute.


So that was the Stenberg case in 2000. Congress gets their hands on this issue and we're walking down this road again. Congress said to the Supreme Court "We don't care what you say about the constitutional requirements for women's health. We don't care. What we're going to do is pass a statute that is going to be a deliberate attempt to gut the protections of Roe."

And in fact, the Chief Senate Sponsor, Senator Santorum, during the process of the hearings, said, and I quote: "I hope the justices read this record. Because I am talking to you. There is no reason for a health exception."

Senator Santorum was saying "I don't care that you just said that women need to have the safest procedures. We, the Congress, are deciding that we do not want those guarantees for women's health." And so Congress passed the law once again. And, even though the Supreme Court had said, "It's a simple matter - if you're making criminal laws about medical procedures, use medical terms," Congress again used the political soundbite, "Partial-Birth abortion."

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