Editore"s Note
Tilting at Windmills

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April 18, 2007
By: Kevin Drum

CHIPPING AWAY AT ROE v. WADE....The Supreme Court has upheld a nationwide ban on the procedure that dare not speak its name. At least not in the Washington Post unless it's in quotes.

It's "partial birth abortion" to its foes and "intact dilation and extraction" to its supporters, but whatever you call it, it's now illegal. Anthony Kennedy wrote the majority opinion, and with the usual conservatives going along the final decision was 5-4 in favor of upholding the Partial Birth Abortion Ban Act of 2003 despite the fact that it contains no health exception provision whatsoever. Ruth Bader Ginsburg wrote the dissent:

"Today's decision is alarming," Ginsburg wrote for the minority. "It tolerates, indeed applauds, federal intervention to ban nationwide a procedure found necessary and proper in certain cases by the American College of Obstetricians and Gynecologists....And, for the first time since Roe, the Court blesses a prohibition with no exception safeguarding a woman's health."

She added: "Retreating from prior rulings that abortion restrictions cannot be imposed absent an exception safeguarding a woman's health, the Court upholds an Act that surely would not survive under the close scrutiny that previously attended state-decreed limitations on a woman's reproductive choices."

There's a sense in which this is more symbolic than anything else, since IDX is infequently used and there are almost always alternate procedures available. But it's not entirely symbolic, and in any case, symbols matter. What's more, as Ginsburg points out, the different standard of scrutiny the court applied in this case will affect future abortion cases as well. It's sad news.

UPDATE: The majority opinion really referred to obstetricians as "abortion doctors" throughout? Apparently so. Wow.

UPDATE 2: I had some kind of brain freeze when I wrote this and ended up implying that Kennedy had previously been opposed to banning IDX. It's fixed now.

Kevin Drum 1:09 PM Permalink | Trackbacks | Comments (149)

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Comments

Anthony Kennedy, who strongly knocked down a state ban on the procedure a few years ago, not only changed his mind this time around but even wrote the majority opinion.

Hah? Kennedy supported the ban a few years ago as all civilized people would support the ban since it's an atrocious procedure. Sheesh.

Posted by: Real_Al on April 18, 2007 at 1:37 PM | PERMALINK

Mrs. Clinton just got a gift from above.

Posted by: Linus on April 18, 2007 at 1:38 PM | PERMALINK

What are the punishments on the patient and doctor if, despite the ban, a doctor performs this procedure?

Posted by: Ryan on April 18, 2007 at 1:40 PM | PERMALINK

It tolerates, indeed applauds, federal intervention to ban nationwide a procedure found necessary and proper in certain cases by the American College of Obstetricians and Gynecologists.

Its always troubling when Congress decides that it knows more about medicine and medical ethics than doctors and patients.

Posted by: sdh on April 18, 2007 at 1:41 PM | PERMALINK

[Handle Hijack]

Posted by: Al on April 18, 2007 at 1:43 PM | PERMALINK

So if a woman finds out late in the game she's carrying a deformed fetus who will die shortly after birth (happened to a good friend of mine), she has to carry to term, give birth (with all the risks) and have the newborn die in front of her.

Nice.

Thanks, Ralph.

Posted by: Gore/Edwards 08 on April 18, 2007 at 1:45 PM | PERMALINK

Yet women dieing of DIC will be much better. It is a gruesome death and the leading cause of the disorder is intrauterine death.

This will happen when a doomed fetus can not be aborted.

Jolly good show.

Posted by: Blue Girl, Red State (aka G.C.) on April 18, 2007 at 1:47 PM | PERMALINK

Kevin quoted Ginsburg: "... a procedure found necessary and proper in certain cases by the American College of Obstetricians and Gynecologists ... " and then wrote: "... IDX is infequently used and there are almost always alternate procedures available ..."

When the procedure is necessary and proper, is by definition when "alternate procedures" are not available.

And in those cases, thanks to the right-wing extremists on the Supreme Court, women will die.

Posted by: SecularAnimist on April 18, 2007 at 1:49 PM | PERMALINK

I find it difficult to imagine a scenario that the upholding of a ban on late term abortions that makes no exception for the health of the mother does not help both Mrs. Clinton's primary bid, as well as her chances of winning the general election. Neither a huge surge in the number of single woman voters, nor a significant backlash from the electoral center against the GOP, would surprise me. I think this was the one decision a Roberts Court could have made that would really hurt the Republicans in 2008.

Posted by: Linus on April 18, 2007 at 1:50 PM | PERMALINK

I haven't read the full decision yet; but the real damage likely here is, as you noted, the fact that a new standard has been adopted that may affect a wide variety of types of cases. The wording of the opinion will be absolutely critical; but this is possibly a very significant turn in the wrong direction on a whole host of future cases people do not yet realize.

Posted by: bmaz on April 18, 2007 at 1:52 PM | PERMALINK

UPDATE: The majority opinion really referred to obstetricians as "abortion doctors" throughout? Apparently so. Wow.

Yeah, they went through several drafts..."babykillers," "abortionists..." They should be happy they weren't called "butchers."

I hope Sandra's enjoying her retirement....

Posted by: Mr Furious on April 18, 2007 at 1:53 PM | PERMALINK

[handle Hijack]

Posted by: Al on April 18, 2007 at 1:56 PM | PERMALINK

Ah, Kevin.

They are abrotion doctors Kevin. Let's call a spade a spade, rather than using the PC language code.

I'm tired of these thought infringements on our freedoms.

Posted by: egbert on April 18, 2007 at 1:56 PM | PERMALINK

Are we living in the Republic of Gilead yet?

Posted by: Wally Ballou on April 18, 2007 at 1:59 PM | PERMALINK

They're called fucking GYNECOLOGISTS!

Yes, it's much better for a fetus to die inside a woman and take her with it, too. Because, after all, if a fetus dies, what's the point of a woman at all? They're just baby machines.

The Supreme Court lawyers aren't doctors, okay? They should stop playing doctor, and leave it to the goddamned ob/gyns and the women whose lives are in their hands. I'm sorry, but NOTHING trumps the health of the mother. Nothing.

I hope they can live with this on their conscience. Especially once women start dying. Again.

Posted by: anonymous on April 18, 2007 at 1:59 PM | PERMALINK

Perhaps this same technique, as described so elquently in the quote above, could be used to remove Al's head from his ass.

Posted by: bmaz on April 18, 2007 at 2:00 PM | PERMALINK

That's pretty freakin' crass even for you, Al. How many will refuse the procedure because they don't want to stand trial after the fact to prove their innocence in a society where we are supposed to be guilty until proven innocent? And how many dead women from complications are you willing to abide? (Or do we all deserve to die because we are women?)

Obstetricians are abortion doctors? All OBs? Even those who have never done a procedure?

Staggering. Simply staggering.

Posted by: Blue Girl, Red State (aka G.C.) on April 18, 2007 at 2:00 PM | PERMALINK

Are we living in the Republic of Gilead yet?

yes. This has been another edition of simple answers to simple questions. (h/t Atrios)

Posted by: Blue Girl, Red State (aka G.C.) on April 18, 2007 at 2:02 PM | PERMALINK

Although I am pro-choice, I agree with this decision as a matter or law.

Kevin mentioned that the partial birth abortion procedure is infrequently used. I think that's a key to the SC decision. The infrequent use means that women who want abortions will be able to get them via other techniques. In other words, banning PBAs doesn't substantially restrict a woman's ability to get an abortion.

Posted by: ex-liberal on April 18, 2007 at 2:03 PM | PERMALINK

Yet women dieing of DIC will be much better. It is a gruesome death and the leading cause of the disorder is intrauterine death.

The Supremes are regulating med procedures. I think they are practicing medicine without a license. They are not doctors. It's simple, really.

Posted by: tubino on April 18, 2007 at 2:04 PM | PERMALINK

The federalism banking regulation ruling will affect more lives, but put me down as opposed to this ruling that reduces a woman's reproductive rights.

Who were the Democrats that voted for it?

Posted by: Brojo on April 18, 2007 at 2:05 PM | PERMALINK

The Democratically controlled Congress can simply make a change to this law and that would settle everything. That's what we should be working towards.

J.S.

Posted by: J.S. on April 18, 2007 at 2:05 PM | PERMALINK

I might add that the technique would arguably be still legal to perform on Al, since he is not a woman about to die; he is a pitiful excuse of a man whose brain has long been dead. Kennedy, and even Scalito, would approve this.

Posted by: bmaz on April 18, 2007 at 2:06 PM | PERMALINK

anonymous: The Supreme Court lawyers aren't doctors, okay? They should stop playing doctor, and leave it to the goddamned ob/gyns and the women whose lives are in their hands. I'm sorry, but NOTHING trumps the health of the mother. Nothing.

I hope they can live with this on their conscience. Especially once women start dying. Again.

I agree, but the blame should go to Congress. The SC didn't ban any abortions. It was Congress who banned PBAs. The SC merely ruled that the law was not unConstitutional.

Posted by: ex-liberal on April 18, 2007 at 2:07 PM | PERMALINK

All this wailing and gnashing of teeth over a relatively minor decision.

All the Court did today was to rule that the federal statute as written or on its face appears to be constitutional.

If an "abortion doctor" becomes subject to any kind of legal sanction based on violating this statute, he can still claim that the application of the statute to him is unconstitional.

Besides, it appears that Ginsburg is wrong as to the type of scrinty that is given. It's my understanding that the standard is one of "undue burden" that O'Connor came up with in Casey.

Posted by: Chicounsel on April 18, 2007 at 2:11 PM | PERMALINK

This conservative hobbyhorse is going to go the way of prohibition. It will take time and a great many people, mostly women, many of them poor, will suffer. We will look back and wonder why there was so much animus and why so much energy was spent on this moral crusade (the answer being to motivate the pious to vote for the economic agenda of the rich who, after all, can jump on a plane and head overseas if they want an abortion). The question is when we get to the point where women are martyred- when women die from illegal abortions and when wealthy and powerful women create an underground railroad and get charged with crimes. It will do nothing but erode popular support for the increasingly unpopular 'conservative agenda'. Since it is a battle we cannot avoid we will have to fight it as the authoritarian brutality is exposed. Perhaps it can be mitigated before we get to that point. If not, then bring it on.

Posted by: bellumregio on April 18, 2007 at 2:12 PM | PERMALINK

Kevin mentioned that the partial birth abortion procedure is infrequently used.

That is because it is not in the same category as "choice" - or shouldn't be. It is a last resort, and a heartbreaking one at that. Every instance I have seen, the parents wanted a live healthy birth, but there was something horribly wrong.

Posted by: Blue Girl, Red State (aka G.C.) on April 18, 2007 at 2:12 PM | PERMALINK

As Al is already brain dead, and very questionably a human, to boot, why the waste of the procedure?

The true "Butchers" and "Torturers" of the Law are the five Jack Asses in the majority.

Posted by: thethirdPaul on April 18, 2007 at 2:13 PM | PERMALINK

Blue Girl, Red State (aka G.C.) -- I agree with you. Once we decide that the fetus doesn't merit legal protection, one method of killing it is as good as another.

However, it's not the job of the SC to make laws that work well or that avoid heartbreak. Their job is to interpret the Constitution. I think they have done their job properly and correctly.

Posted by: ex-liberal on April 18, 2007 at 2:16 PM | PERMALINK

Calling them "abortion doctors" is like calling surgeons "appendectomy doctors" or some such. Abortion is only part of what Ob/Gyns do, and some of them never do it at all. The label is an obvious attempt to discredit a doctor's entire practice by highlighting the most controversial part of it, for political purposes. So no, it's not merely a neutral, descriptive term.

Posted by: Ryan on April 18, 2007 at 2:18 PM | PERMALINK

That's incorrect about Kennedy. Kennedy authored the dissent in Stenberg v. Carhart, the case that struck down a similar Nebraska statute. Kennedy's views have remained the same.

Posted by: alan on April 18, 2007 at 2:18 PM | PERMALINK

Anyone else remember those confirmation hearings for Roberts and Alito where these two "conservatives" declared their undying loyalty to the principle of Stare Decisis and their belief that precedent is "settled law" and therefore not open to further debate and decision?

As with most of these alleged "movement conservatives" it turns out that they were "doing what was necessary" to advance the cause. Anyone who trusts any of these bastards farther than they can be seen with your eyes closed pretty much deserves the consequences. And that includes every Democratic Senator who has voted to confirm any Bush appointee to any position since January 20, 2001.

Posted by: TCinLA on April 18, 2007 at 2:19 PM | PERMALINK

Conservative Supreme Court decides "all your womb are belong to us"...

Posted by: AkaDad on April 18, 2007 at 2:21 PM | PERMALINK

I'm not sure how to insert part of someone elses comment, so here is my attempt. Forgive me if I've done it wrong!

"By the way, Ginsburg is a liar. There is an exception for a woman's health. From the statute:

(d) (1) A defendant [doctor] accused of an offense under this section may seek a hearing"

Ginsburg is not lying! Let me just say that when a doctor is referred to as a "defendant" the legal system has gotten involved!! It has left the realm of doctor's office choices and realities and turned into a legal battle!!

Please!

Posted by: HopefulOkie on April 18, 2007 at 2:22 PM | PERMALINK

Ryan wrote: Calling them "abortion doctors" is like calling surgeons "appendectomy doctors" or some such. Abortion is only part of what Ob/Gyns do, and some of them never do it at all.

Ryan, this is exactly why the SC was right to call them "abortion doctors." Some Ob/Gyns don't do abortions. Some doctors specialize in abortions and don't do the full gamut of Ob/Gyn work. So, "abortion doctors" is the correct, precise term for the doctors affected by this decision.

Posted by: ex-liberal on April 18, 2007 at 2:22 PM | PERMALINK

I hate abortion. But I hate even more when lawyers and congresspeople try to tell professional physicians what they should or should not do.

This was a bad decision.

Posted by: mmy on April 18, 2007 at 2:36 PM | PERMALINK

No-one is doing this procedure or accepting this procedure as a matter of choice. Birth control, morning-after pill, and first trimester abortions are choices. This procedure is a heart-breaking last-choice necessity. Has anyone ever demonstrated that doctors are performing this procedure casually and wantonly? All it is is a stupidly ignorant political symbol for the right wing.

Posted by: Neal on April 18, 2007 at 2:37 PM | PERMALINK

Neal - You are exactly right. The problem is how the standard affects a whole range of future decisions, and not just on abortion. This is very bad. I repeat, however, there is no bar to doing it to Al.

Posted by: bmaz on April 18, 2007 at 2:41 PM | PERMALINK

mmy: I hate even more when lawyers and congresspeople try to tell professional physicians what they should or should not do.

Really? I suspect you support lots of laws that try to tell professional physicians what they should or should not do. E.g.,

-- Laws that prohibit physicions from proscribing medications that haven't been approved by the FDA.

-- Laws that prohibit physicions from practicing medicine unless they're licensed by the state.

-- Laws requiring Emergency Rooms to accept all patients, whether they can pay or not.

-- Laws allowing juries to force physicians to pay malpractice awards, based on the judgment of a jury of lay persons.

-- laws requiring physicians who treat malpractice patients to charge what the government tells them to.

Posted by: ex-liberal on April 18, 2007 at 2:48 PM | PERMALINK

Well, no one thought it odd that a majority of the Supremes became Catholic. Nary a mention. What the hell did you expect?

Posted by: Rula Lenska on April 18, 2007 at 2:55 PM | PERMALINK

Really? I suspect you support lots of laws that try to tell professional physicians what they should or should not do.

We're talking about medical procedures, not licensing and administrative issues.

Posted by: trex on April 18, 2007 at 2:56 PM | PERMALINK

Ex liberal the least you can do is pay attention. Oops I forgot your an unrequited conservative therefor abdicating all responsibility for your actions . Kevin was stalking about the majority opinion referring to obstetricians as abortion doctors. You flaming douchebag do you even know what an obstetrician is?
No wonder conservatism is dying. I think we need to pass a new act of congress . We'll call it the No Conservative Left Behind Act.

Posted by: Gandalf on April 18, 2007 at 2:56 PM | PERMALINK

Some Ob/Gyns don't do abortions. Some doctors specialize in abortions and don't do the full gamut of Ob/Gyn work. So, "abortion doctors" is the correct, precise term for the doctors affected by this decision.

That's disingenuous. My understanding is that a much greater number (i.e. greater than either of your two polarized categories -- those who opt out and those who specialize) *do* provide the full range of Ob/Gyn services. They don't deserve to be called 'abortion doctors', which is a clear attempt to rhetorically reduce their practice and professional qualifications to the single most controversial thing they do.

For purposes of defining, in law, the relevant actor in a particular clinical situation it seems to me the best term is 'abortion provider'. It points to the particular act being legislated about, rather than stigmatizing the person's entire profession.

And I say this in full knowledge that some adamant pro-choicers (including, I note today, Scott Lemieux) seem to have no problem with the terms "abortion doctor" or "abortionist" (though these seem to me less objectionable in the case of the minority who specialize in such procedures).

Posted by: Ryan on April 18, 2007 at 2:57 PM | PERMALINK

ex-lib, mmy is still right. Professional liscensing is standard for most important professions (eg, law, accounting, etc). Requirements to abide by law and trial-by-jury apply to all citizens. Regulations regarding taking all patients at ER's are laws affecting hospitals (which are, at heart, businesses) not individual physicians. No MAN in a fancy suit should ever have the right to tell me or my doctor what to do.

Posted by: brainchild on April 18, 2007 at 2:58 PM | PERMALINK

I need to amend that post. It should be called the All Conservatives Kiss my Right Behind Act.

Posted by: Gandalf on April 18, 2007 at 2:59 PM | PERMALINK

No one has mentioned the worst part of this: that these so-called "Pro Life" people are totally phony. They favor the death penalty and unnecessary wars that kill hundreds of thousands of innocent people, but they call themselves "Pro Life". Well, they're not pro life, and they're not Christians. They don't believe in anything.

Posted by: Riesz Fischer on April 18, 2007 at 3:00 PM | PERMALINK

The infrequent use means that women who want abortions will be able to get them via other techniques.

"ex-liberal," you mendacious toad, no one chooses to get this procedure willy-nilly. It's done to protect the woman's health -- which is why there's no exception; any health exemtption would nullify the band. There's no basis to say women who need this prodecure will be able to get them via other techniques.

But then, there's no basis for anything in your post except to carry water for the Republicans with more bullshit. Why do you bother?

Posted by: Gregory on April 18, 2007 at 3:03 PM | PERMALINK

The dishonesty on display from Republican water carriers like "ex-liberal" and Chicounsel can only translate into votes for Democrats. Thanks, guys, for showing yet again how morally and intellectually bankrupt the Republican Party has become.

Posted by: Gregory on April 18, 2007 at 3:04 PM | PERMALINK

And I say this in full knowledge that some adamant pro-choicers (including, I note today, Scott Lemieux) seem to have no problem with the terms "abortion doctor" or "abortionist" (though these seem to me less objectionable in the case of the minority who specialize in such procedures).

Actually I take back the bit about Lemieux because I can't now find the post by him using these terms I thought I saw earlier today. Must have been someone else.

Posted by: Ryan on April 18, 2007 at 3:05 PM | PERMALINK

ex-liberal: Although I am pro-choice, I agree with this decision as a matter or law.

And here I thought you were only pro-lie.

Chicounsel: Besides, it appears that Ginsburg is wrong as to the type of scrinty that is given. It's my understanding that the standard is one of "undue burden" that O'Connor came up with in Casey.

Appearances can be deceiving, especially when it is an idiot perceving those appearances.


Posted by: anonymous on April 18, 2007 at 3:06 PM | PERMALINK

The ruling is alarming because it sets a precedent that disregards the life of the mother. It seems to say "who cares if the mother dies, her life is insignificant".

If the Democrats had any sense they would use this against the Republicans at every opportunity since it is likely to make a significant portion of the population angry just like the Schiavo fiasco did.

Posted by: Chrissy on April 18, 2007 at 3:07 PM | PERMALINK

States rights sounds better all the time. The only thing that will save this law after January of 2009 is the filibuster.

Posted by: Brian on April 18, 2007 at 3:10 PM | PERMALINK

And here I thought you were only pro-lie.

Of course "ex-liberal" is -- he/she/it proves it in this thread, and a more disgusting display of mendacity and self-righteous hypocrisy is rarely to be seen.

"ex-liberal" is probably just nursing a grudge from the shellacking he took in this thread...and, well, every other one that exposes his uncivil dishonesty in service of the neocon agenda.

Posted by: Gregory on April 18, 2007 at 3:11 PM | PERMALINK

On its face, today's Supreme Court decision in Gonzales v. Carhart is a victory for abortion foes seeking to ban one rarely used but seemingly horrific procedure. But in the bigger picture, the Court's validation of the 2003 Partial Birth Abortion Act is a landscape-changing triumph for conservatives' slippery slope campaign to chip away at the reproductive and privacy rights of American women.

That's because anti-abortion forces never really cared about intact dilation and extraction, a rare practice used in extreme late-term cases perhaps 2500 times annually. No, as its own advocates freely admit, the so-called partial birth abortion was all about marketing:

"(The) partial-birth abortion ban is a political scam but a public relations goldmine...This bill, if it becomes law, may not save one child's life...The major benefit of this bill is the debate that surrounds it."
Randall Terry, Founder, Operation Rescue), News Release, September 15, 2003

For more background, see:
"Marketing the Partial Birth Abortion Ban."

Posted by: AngryOne on April 18, 2007 at 3:12 PM | PERMALINK

Without the woman's health exemption, you will see some women who undergo "alternate" procedures unable to bear children afterward. Pretty sad if it's a first pregnancy; her chance to try to have a healthy baby will be gone. Very pro-life. Then again, I guess that's not really the point, is it?

Posted by: nene on April 18, 2007 at 3:13 PM | PERMALINK

OT:

Massive numbers of communist sympathizers in the government . . . wrong.

Massive stockpiles of WMDs in Iraq . . . wrong.

Massive voter fraud throughout Democratic voting districts . . . wrong.

----------------

Anybody see a pattern here?

Posted by: anonymous on April 18, 2007 at 3:14 PM | PERMALINK

[deleted commentary from a banned commenter]

Posted by: jay on April 18, 2007 at 3:17 PM | PERMALINK

Gregory: There's no basis to say women who need this prodecure will be able to get them via other techniques.

That's a key point. I skimmed the decision and didn't find this point addressed. I did not yet read Ginsberg's dissent. Do you know if she found that there are situations where women need an abortion and no procedure other than PBA is available?

brainchild, it's a quibble, but current laws do indeed restrict medical care, including abortion. E.g., suppose your doctor wanted provide an abortion and her selected method was to proscribe RU-486 (before the FDA approved it). That method of abortion was legally banned.

If your doctor wanted to do an abortion, but she had no license, that abortion would be banned. Incidentally, this latter point is far from theoretical. There are areas of the country where women cannot find licensed physicians willing to do abortions.

Posted by: ex-liberal on April 18, 2007 at 3:18 PM | PERMALINK

"ex-liberal" wrote: That's a key point. I skimmed the decision and didn't find this point addressed.

And yet you asserted that the decision wouldn't restrict abortion, as women would be able to use alternate measures.

Thanks for admitting your dishonesty in service of neocon talking points, "ex-liberal," but rest assured, you fool no one. Why do you bother?

Posted by: Gregory on April 18, 2007 at 3:26 PM | PERMALINK

Dear Al:

What you cite is a "life of the mother exception." Even the Catholic Church is in favor of abortion to save the life of the mother. It is not, however, a "health of the mother" exception. Two different things.

Posted by: Jose Padilla on April 18, 2007 at 3:27 PM | PERMALINK

ex-liberal: Do you know if she found that there are situations where women need an abortion and no procedure other than PBA is available?

Any situation in which an operation represents a grave risk to the health or life of the woman.

I bet you believe every person can be operated on at any time without any risk whatsoever, right?

What a dishonest dimwit you are.

If your doctor wanted to do an abortion, but she had no license, that abortion would be banned.

Bwahhhhhahhhhahhaaaa!

Not even close to the truth and irrelevant to boot, unless there were no other doctors in the world.

Well, maybe that's true in the bizzaro world that ex-liberal lives in.

Posted by: anonymous on April 18, 2007 at 3:30 PM | PERMALINK

Kevin mentioned that the partial birth abortion procedure is infrequently used. I think that's a key to the SC decision. The infrequent use means that women who want abortions will be able to get them via other techniques. In other words, banning PBAs doesn't substantially restrict a woman's ability to get an abortion.
Posted by: ex-liberal on April 18, 2007 at 2:03 PM | PERMALINK

I read it differently. It is a very unpleasant procedure. The reason it is used infrequently is that it is unpleasant. This tells me that the women who are using it are doing so for severe health reasons. It is not some frivolous last chance birth control procedure. It's about life and death. It's probably also about the quality of a womans reproductive organs after the birth of the stillborn. I can see a lot of women rendered infertile because they can no longer perform this procedure. What an irony considering the conservatives supporting this are "pro family"

Posted by: Northern Observer on April 18, 2007 at 3:33 PM | PERMALINK

ex-liberal: I think that's a key to the SC decision.

The key to the decision is conservative mendacity, both in Congress and on the Court.

Posted by: anonymous on April 18, 2007 at 3:36 PM | PERMALINK

This decision is good news.

Not that the pugster's had a chance in the 2008 elections... but this positively seals their doom.

Posted by: ROTFLMLiberalAO on April 18, 2007 at 3:37 PM | PERMALINK

I continue to wonder how any woman of sound mind could ever vote for a Republican.

Posted by: ckelly on April 18, 2007 at 3:38 PM | PERMALINK

ckelly: I continue to wonder how any woman of sound mind could ever vote for a Republican.

Probably for the same reasons that many gays vote Republican.

Money, power, and social standing can overcome other self interests that are of lower value to the individual - e.g., if you are never having a baby or an abortion, then this decision doesn't affect your interests in the slightest.

Plenty of conservatives are willing to let others die or be abused to serve that conservative's interests.

Just ask Monica Goodling who readily put aside her "Christian" values and her "Christian" education to further the interests of liars, thieves, and criminals within the GOP, as well as her own career.

Posted by: anonymous on April 18, 2007 at 3:46 PM | PERMALINK

Thanks, Angryone, for reminding us of the real political context of partial birth abortion. Makes me think of Intelligent Design's Wedge Strategy. To paraphrase your link:

1. highlight a gruesome medical procedure that generates natural feelings of sympathy
2. play on and publicize apparent majority support for banning the practice in question.
3. change the framing of the debate by branding the practice using a term, such as "partial-birth" or "unborn victim," which makes opposition virtually impossible.

But two can play at the game of exposing the public conscience to brutality. The authoritarians, who can only bamboozle the majority, organize their agenda without considering that the lay of the land may change or that their opponents can play the same game. This will happen when women begin to die and are arrested. The best tool to defeat the authoritarian agenda is to let the public see the consequences- tainted food, broken levees, failing health care, stagnant wages, etc- oh, and a whole ocean of corruption.

Posted by: bellumregio on April 18, 2007 at 3:49 PM | PERMALINK

I would love to ask Monica Goodling some questions. And get answers other than "I plead the Fifth."

Posted by: Blue Girl, Red State (aka G.C.) on April 18, 2007 at 3:49 PM | PERMALINK

anonymous wrote: The key to the decision is conservative mendacity, both in Congress and on the Court.

That's why "ex-liberal" loves it so.

Posted by: Gregory on April 18, 2007 at 3:50 PM | PERMALINK

Money, power, and social standing can overcome other self interests that are of lower value to the individual

But that's why I'm puzzled. It's not just abortion or this ruling per se. Republican policies and kowtowing to the religious right throw up roadblocks to money, power, and social standing for women, gays, minorities, the middle class...

Posted by: ckelly on April 18, 2007 at 3:56 PM | PERMALINK

Man, this place is getting sillier by the day.

Posted by: Brian on April 18, 2007 at 4:00 PM | PERMALINK

Man, this place is getting sillier by the day.

Don't let the door hit ya where the good Lord split ya.

Posted by: ckelly on April 18, 2007 at 4:08 PM | PERMALINK

fucking hypocrites, all of you.

there are all sorts of congressional enactments regulating physicians and their choices. I don't see you whining about those.

you turn into blubbering idiots when the subject of abortion comes up.

btw, its a documented fact that elective late-term abortions are performed in NYC (I have personal knowledge of them being done at NYU Medical Center and there is documentary evidence that NYC is the center for elective late-term abortions).

Posted by: Nathan on April 18, 2007 at 4:12 PM | PERMALINK

I would just leave Brian. There is a reason I don't hang out at LGF, or the Corner or Powerline, after all.

Why are you here again?

Posted by: Blue Girl, Red State (aka G.C.) on April 18, 2007 at 4:12 PM | PERMALINK

Blue Girl,

I get a kick out seeing both sides of the spectrum act up. I don't hang out at LGF or the Corner either, but Powerline is interesting.

Posted by: Brian on April 18, 2007 at 4:15 PM | PERMALINK

oh, and here's the proof:

http://nymag.com/nymetro/news/features/15249/

Posted by: Nathan on April 18, 2007 at 4:18 PM | PERMALINK

Ah, typically valuable and cogent legal opinion from Nathan. (larf)

Brian: Powerline is interesting

As an execercise in dishoensty and delusion in service of the authoritarian neocon agenda, maybem but we have "ex-liberal" for that.

Posted by: Gregory on April 18, 2007 at 4:22 PM | PERMALINK

Yet women dieing of DIC will be much better. It is a gruesome death and the leading cause of the disorder is intrauterine death. This will happen when a doomed fetus can not be aborted.

I would hope that the "life of the mother" exception in the law would prevent this from being the outcome. Of course, that exception won't save a woman's uterus.

Posted by: Disputo on April 18, 2007 at 4:24 PM | PERMALINK

The so-called ‘religous right’ has nothing to do with religion. They just organize their political agenda under the banner of religion because they are attracted to the security of orthodoxies. It could just as well be orthodox communism or Manchester capitalism. They are authoritarians by personal inclination or by their cultural background who want to make others bow to their sacred truths and the stability of paternal power. Their great enemy is pluralism and liberal democracy.

Posted by: bellumregio on April 18, 2007 at 4:33 PM | PERMALINK

ckelly: Republican policies and kowtowing to the religious right throw up roadblocks to money, power, and social standing for women, gays, minorities, the middle class...

Not if you are okay being in the closet or willing to suck at the teat of the GOP as hard as you can (Clarence Thomas & Jean Schmidt & Elizabeth Dole & JC Watts, eh?).

Those who betray their heritage and allow discrimination to otherwise run rampant over their peers will be rewarded by the GOP.

There are quislings everywhere and the GOP is happy to recruit them.

Then there are a host of delusional middle-class morons who actually believe they will reap the benefits of their loyalty to the GOP through trickle down . . .

. . . one almost feels sorry for them.

Almost.

Posted by: anonymous on April 18, 2007 at 4:37 PM | PERMALINK

You know what? I think that it might be a good idea, in early 2009, for the Democratic Congress and President to deal with the fact that the Supreme Court is clearly too small by half to deal with the demands placed upon it.

Posted by: cmdicely on April 18, 2007 at 4:39 PM | PERMALINK

Nathan: btw, its a documented fact that elective late-term abortions are performed in NYC

BTW, it's a documented fact that Nathan had a lobotomy . . .

Posted by: anonymous on April 18, 2007 at 4:43 PM | PERMALINK

Nathan: you turn into blubbering idiots when the subject of abortion comes up.

Not half the blubbering idiot you tern into when the subject of Princess Bush comes up.

. . . there are all sorts of congressional enactments regulating physicians and their choices.

For the benefit of the physician's patient, not to the detriment of that patient.

A distinction I'm sure you are and will continue to be oblivious to.

Posted by: anonymous on April 18, 2007 at 4:46 PM | PERMALINK

The problem with this SCOTUS decision and all other attempts by government to involve itself in the most intimate aspects of our personal lives is that it creates a threshold for invasion of privacy; if we accept that the state has a legitimate interest in regulating what goes on inside our bodies, then nothing is out of bounds.
We can't complain about government surveillance of our mail and electronic communications; we can't complain about government regulation of guns, or alcohol, or automobiles or anything else.

Once we have conceded to the ultimate invasion of our privacy, then there is no defense against other intrusions by government. One would like to think that of all people, conservatives could grasp this simple concept.

Posted by: swamp thing on April 18, 2007 at 4:47 PM | PERMALINK

TCinLA >"...that includes every Democratic Senator who has voted to confirm any Bush appointee to any position since January 20, 2001."

Nothing that has happened in the United States after that date is constitutional &/or legal. The George Bush/Richard Cheney maladministration is an illegal one on several grounds, the least of which is the events in Florida. The legal doctrine/principal of "fruit of a poisoned tree" applies (for instance) to the actions of Congress as well as any appointments to the bench.

Of course I don`t ever expect anything to be done about this. There are too many powerful psychos that have benefitted, not to mention the emotional juveniles that support the current ReichWing conspiracy (hello Al, ex-liberal, Norman etc).

The question is how do "We the people..." clean up this mess, not how do we go back to where we thought we were. How do communities of sane humans deal with various Great Skyfather myths (few of which agree on much of anything) ?

"As long as people believe in absurdities they will continue to commit atrocities." - Voltaire

Posted by: daCascadian on April 18, 2007 at 4:48 PM | PERMALINK

Brian: . . . but Powerline is interesting.

So is a train wreck.

So, you are a political lookie-loo.

Interesting.

Posted by: anonymous on April 18, 2007 at 4:49 PM | PERMALINK
Even the Catholic Church is in favor of abortion to save the life of the mother.

No, actually, it is not. The Catholic Church considered procured abortion as direct homicide, and considers direct homicide illicit for any purpose*, including to save life.

(*well, aside from justified capital punishment and, possibly, just war, which are a whole different kettle of fish, but neither of which exceptions would include procured abortion.)

Posted by: cmdicely on April 18, 2007 at 4:50 PM | PERMALINK

"Chipping Away at Roe v. Wade"

Yep…terrific, in another thirty years we will be were Europe is now in regulating abortion.

Posted by: Fitz on April 18, 2007 at 4:50 PM | PERMALINK

Once again, we see that potential life is more valuable than the woman carrying it around. If it kills her, so what?

Mandatory motherhood is what the Al's of the nation want, and people keep pretending they can be reasoned with.

They make all sorts of excuses, but the simple truth is that they want women tied to the function of reproduction.

Posted by: zak822 on April 18, 2007 at 4:51 PM | PERMALINK

I eagerly look forward to cmdicely explaining to daCascadian why he is utterly wrong...oh wait....

Posted by: Nathan on April 18, 2007 at 4:53 PM | PERMALINK

cmdicely: The Catholic Church considered procured abortion as direct homicide, and considers direct homicide illicit for any purpose*, including to save life.

So a SWAT team sniper that kills a hostage taker reaching to push the detonator on a bomb strapped to himself commits an illicit homicide?

Same with self-defense? X aims a gun at me and tells me he's going to kill me and I can't shoot him without jeopardizing my immortal soul?

An intruder is about to stab to death my 8 year old daughter and I can't shoot him?

Posted by: anonymous on April 18, 2007 at 4:56 PM | PERMALINK

Nathan: I eagerly look forward to cmdicely explaining to daCascadian why he is utterly wrong . . .

Even more eagerly, I look forward to cmdicely tearing Nathan a new one.

;-)

Posted by: anonymous on April 18, 2007 at 4:57 PM | PERMALINK
Liberals would...mh rat 2:05 PM...I have personal knowledge... Nathan at 4:12 PM
Straw men and 'personal knowledge, i.e. Sumsay. Awesome thought processes that illustrate Republican standards. As was pointed out, elections matter to women in a life or death way, but not all the bad guys are on one side. Too many conservative Democrats joined the Republicans in this infringement on a women's right to life: Bayh, Byrd, Carper, Conrad, Dorgan, Johnson (SD), Leahy, Lincoln, Ben Nelson, and Reid. Wouldn't it be nice to have a party that represented its constituents completely?

Also this other bit of information. According to ABC News:

...Some news accounts have suggested that Cho had a history of antidepressant use, but senior federal officials tell ABC News that they can find no record of such medication in the government's files. This does not completely rule out prescription drug use, including samples from a physician, drugs obtained through illegal Internet sources, or a gap in the federal database, but the sources say theirs is a reasonably complete search....
Is every drug that been prescribed to you in one of Bush's government databases?

Posted by: Mike on April 18, 2007 at 5:00 PM | PERMALINK

Nathan: . . . its a documented fact that elective late-term abortions are performed in NYC (I have personal knowledge of them being done at NYU Medical Center . . .

And your point is, what?

Posted by: anonymous on April 18, 2007 at 5:01 PM | PERMALINK

btw, its a documented fact that elective late-term abortions are performed in NYC (I have personal knowledge of them being done at NYU Medical Center and there is documentary evidence that NYC is the center for elective late-term abortions).
Posted by: Nathan on April 18, 2007 at 4:12 PM | PERMALINK

Interesting head fake. Notice that elective late term abortion does not equal Partial B abortion. Notice also that late term is not defined.
Look for me it is not a burning issue. I am not going to go to a demonstration, start a petition or write my senator. But I'm going to call a spade a spade. What I am witnessing is cruelty. Petty human cruelty. Making people suffer so that you and your friends can feel morally righteous. That's sick.

As a Christian I am also offended by the abuse of my faith to support such cruelty. Jesus would not force people to suffer like this. Jesus would be compassionate. There is no compassion in the hearts of the Christian rightists. They stain the faith with their lust of power and righteousness. They are like the Pharisees, clean on the outside, appearing to obey all of Gods laws but their hearts are rotten with hate and lust for power.

What would Jesus do? Jesus would not let the mother suffer and would allow the physician to heal the body. As for abortion as a whole it has always been obvious to me that the proper Chritian response is to make a world where pregnancy is always a blessing regardless of its origin and helps mothers bear the burden of the coming birth. We should be like Joseph to Mary and not like the villagers who would stone her for being impure and pregnant out of wedlock. Where is the outreached Chritian hand ready to love and help?

This law is simply stoning Mary to death for not having a perfect pregnancy.

Posted by: Joseph on April 18, 2007 at 5:02 PM | PERMALINK

Even more eagerly, I look forward to cmdicely tearing Nathan a new one.

Seems to me I've seen that movie before. ;)

Oh, well..Nathan will probably just try to get revenge by falsely ascribing another opinion to cmdicely. He's done it before.

Posted by: Gregory on April 18, 2007 at 5:04 PM | PERMALINK

Cho sent a bunch of writings and videos to NBC news. They ahve been turned over to the FBI (if I heard right. I just heard it on NPR).

Posted by: Blue Girl, Red State (aka G.C.) on April 18, 2007 at 5:04 PM | PERMALINK

Mike: Is every drug that been prescribed to you in one of Bush's government databases?

I'm thinking probably only controlled substances, but with the Princess Bush administration you never know.

Nothing is beyond an administration that embraces torture and criminality as SOP.

Posted by: anonmyous on April 18, 2007 at 5:05 PM | PERMALINK

Via TPM: FBI raids Rep. Doolittle's (R-CA) home in Northern Va. More soon.

Happy, happy, joy, joy, more GOP corruption for the front pages of the nation's newspapers.

The party that keeps on giving and giving.

The Democrats thank you, conservatives, for your support.

:-)

Posted by: anonymous on April 18, 2007 at 5:08 PM | PERMALINK

"Brian: Powerline is interesting

As an execercise in dishoensty and delusion in service of the authoritarian neocon agenda, maybem but we have "ex-liberal" for that.
Posted by: Gregory"

It's just this sort of silly, paranoid rant that makes the wingnuts on either side hard to take seriously. It can make them entertaining, however.

Posted by: Brian on April 18, 2007 at 5:14 PM | PERMALINK

Got Democracy?

When discussing the Court's modest partial-birth abortion ruling, it's worth recalling that the broad bipartisan congressional majorities that voted for the law included Democrats like current Senate majority leader Harry Reid and Senate Judiciary Committee chairman Pat Leahy.

Posted by: Fitz on April 18, 2007 at 5:16 PM | PERMALINK

It is interesting that Thomas noted in his opinion that the law may be suspect on the grounds that there is nothing in the procedure which relates to interstate commerce, and thus Congress inherently lacks to power to pass such a law. He also said the issue wasn't addressed because the litigants didn't raise it. Since I tend to agree that this law is beyond Congress' scope for this reason, but I'm certainly no legal expert, it causes me to wonder why no one on the side which argued against this law before the Court did not raise it. Certainly they must have been aware of Thomas' track record in regards to the Commerce Clause, weren't they? I mean, Scalia can be expected to drop his opposition to a ridiculously broad reading of the meaning of interstate commerce as soon as doing so fits his social views, but Thomas has shown more consistency in this regard. What tactical, strategic, or bureaucratic reason would there be for those who opposed this law to not file a brief pertaining to this aspect, and thus possibly attract Thomas' vote?

Posted by: Will Allen on April 18, 2007 at 5:18 PM | PERMALINK

Brian: It's just this sort of silly, paranoid rant that makes the wingnuts on either side hard to take seriously. It can make them entertaining, however.

Absolutely.

I much prefer smug superiority.

Posted by: anonymous on April 18, 2007 at 5:23 PM | PERMALINK

What I can't figure out is why such a group of informed readers thinks it's acceptable to take a child that otherwise could be viable via c-section and purposely suck its brains out in-vitro so that it can be delivered dead. What is it about killing it in the womb that makes it acceptable? Some may argue this spares the mother some agony, but killing is killing, and doing so before it can take a breath is no different than doing so after it does.

Posted by: orion on April 18, 2007 at 5:26 PM | PERMALINK

Will Allen: What tactical, strategic, or bureaucratic reason would there be for those who opposed this law to not file a brief pertaining to this aspect, and thus possibly attract Thomas' vote?

Perhaps the belief that the Court would actually honor the long-standing precedent of an exception for the life of the mother in the equal belief that a majority of justices actually care about women living through their pregancy.

Just a guess.

Posted by: anonymous on April 18, 2007 at 5:27 PM | PERMALINK

Will Allen: What tactical, strategic, or bureaucratic reason would there be for those who opposed this law to not file a brief pertaining to this aspect, and thus possibly attract Thomas' vote?

Interesting question. The case I recall where the Court applied the 10th amendment related to guns near schools. In this case, not only was the application not interstate, it also didn't involve commerce.

Many cases have held that any sort of commerce can be considered to be "interstate" commerce, for the purpose of federal regulation. E.g., intrastate wetlands. Since some women get abortions from out-of-state providers, the case for calling an abortion "interstate commerce" seems relatively strong, given today's interpretation of the 10th Amendment.

Posted by: ex-liberal on April 18, 2007 at 5:32 PM | PERMALINK
So a SWAT team sniper that kills a hostage taker reaching to push the detonator on a bomb strapped to himself commits an illicit homicide?

Maybe. Intent—not merely the goal but the intended means—matters. If the sniper intends to kill, either as a means or as an ends in and of itself, the homicide is illicit; if the sniper intends to deprive the hostage taker of the capacity to detonate the bomb and merely accepts that the hostage taker's death is a very likely consequence of that incapacitation, then its not illicit as direct homicide, it is an indirect homicide, and likely one most applying Catholic doctrine would find justified by proportional cause.

The distinction between "direct" and "indirect" killing is all about intending to kill; all direct killing is prohibited, as is indirect action which produces (or should be expected to produce) killing without proportionate cause.

Note that this is a very fine distinction that is often extraordinarily difficult to evaluate externally in concrete cases, but then Catholic doctrine (if not always the practice of the heirarchy) is generally against sitting in moral judgement of others in concrete cases, anyhow.

(The above applies the general rule, but one should note that its generally accepted that law enforcement is something of a special case as the just war and capital punishment exceptions are special cases of a broader "public authority" exception whose parameters except in terms of just war and capital punishment aren't particularly that well doctrinally defined.)

Same with self-defense? X aims a gun at me and tells me he's going to kill me and I can't shoot him without jeopardizing my immortal soul?

You can't intend to kill him without doing so, in Catholic doctrine. That rather emphatically is not equivalent to "you can't shoot him", though.

An intruder is about to stab to death my 8 year old daughter and I can't shoot him?

As above.

Posted by: cmdicely on April 18, 2007 at 5:32 PM | PERMALINK

Will Allen

While I cant answer your question as to why, I can say that yes, Thomas beliefs regarding the commerce clause are well known and this possibility was well known (as evidenced by this article)
This Heartbreaking Court by Hadley Arkes
First Things (October 2006)

http://www.firstthings.com/article.php3?id_article=5360


Of coarse, If such a commerce clause reading prevails, quite a few laws get overturned and the power between the States & the federal government are drastically altered.

Posted by: Fitz on April 18, 2007 at 5:32 PM | PERMALINK

orion: What I can't figure out is why such a group of informed readers thinks it's acceptable to take a child that otherwise could be viable via c-section and purposely suck its brains out in-vitro so that it can be delivered dead.

Perhaps you missed the part about women who can't, for some medical reason, bear the burden of an operation that cuts into their abdomen.

Are you male, btw?

Just wondering.

I'm sure there are many males who think it's just a walk in the park to have a surgeon slice through your abdominal muscles.

Posted by: anonymous on April 18, 2007 at 5:33 PM | PERMALINK

"Absolutely.

I much prefer smug superiority.
Posted by: anonymous"

Well said.

Posted by: Brian on April 18, 2007 at 5:37 PM | PERMALINK

orion: Some may argue this spares the mother some agony, but killing is killing, and doing so before it can take a breath is no different than doing so after it does.

Uh, no, if it is not a life and under historical precedent the baby is not a life under after it is born.

Which is why birth certificates or other legal indicia of personhood are not applied to fetuses and never have been (at least in Western culture).

Posted by: anonymous on April 18, 2007 at 5:37 PM | PERMALINK

Joseph >"...This law is simply stoning Mary to death for not having a perfect pregnancy."

May the universe bless you & yours.

"The mind is its own place,
and in itself can make a heaven of hell,
and a hell of heaven." - John Milton

Posted by: daCascadian on April 18, 2007 at 5:38 PM | PERMALINK

Will Allen

From the article (above)
Discussing the PBA ban and the commerce clause & Thomas decision in U.S. v. Lopez

"Thomas was alone, even among the conservative jurists. But he had articulated his position in one of the most notable essays in his years on the Court, and that argument, put forth so earnestly, had to come into play if the bill on partial-birth abortion were litigated under the Commerce Clause. For Thomas would be under immense personal pressure to show that he did indeed respect the doctrine of jurisprudence he had put forth. And in the style of conservative jurisprudence, the demonstration would be all the more exquisite when he shows people that he would honor his doctrine even when it prevented him from reaching a decision in the case at hand that he devoutly wished to reach. For the pro-life cause, the loss of this vote would be momentous: If the federal bill on partial-birth abortion were struck down, no one would expend the political capital to try, for a fourth time, to revise that bill and present it for hearings yet again. That particular measure by itself may not be overly important, but the dramatic loss in the Court could be widely demoralizing."

Posted by: Fitz on April 18, 2007 at 5:39 PM | PERMALINK

Got Democracy?

U.S. Senate Roll Call Votes 108th Congress - 1st Session

YEAs 64
NAYs 33
Not Voting 3

YEAs ---64
Alexander (R-TN)
Allard (R-CO)
Allen (R-VA)
Bayh (D-IN)
Bennett (R-UT)
Bond (R-MO)
Breaux (D-LA)
Brownback (R-KS)
Bunning (R-KY)
Burns (R-MT)
Byrd (D-WV)
Campbell (R-CO)
Carper (D-DE)
Chambliss (R-GA)
Cochran (R-MS)
Coleman (R-MN)
Conrad (D-ND)
Cornyn (R-TX)
Craig (R-ID)
Crapo (R-ID)
Daschle (D-SD)
DeWine (R-OH)
Dole (R-NC)
Domenici (R-NM)
Dorgan (D-ND)
Ensign (R-NV)
Enzi (R-WY)
Fitzgerald (R-IL)
Frist (R-TN)
Graham (R-SC)
Grassley (R-IA)
Gregg (R-NH)
Hagel (R-NE)
Hatch (R-UT)
Hollings (D-SC)
Hutchison (R-TX)
Inhofe (R-OK)
Johnson (D-SD)
Kyl (R-AZ)
Landrieu (D-LA)
Leahy (D-VT)
Lincoln (D-AR)
Lott (R-MS)
Lugar (R-IN)
McCain (R-AZ)
McConnell (R-KY)
Miller (D-GA)
Murkowski (R-AK)
Nelson (D-NE)
Nickles (R-OK)
Pryor (D-AR)
Reid (D-NV)
Roberts (R-KS)
Santorum (R-PA)
Sessions (R-AL)
Shelby (R-AL)
Smith (R-OR)
Specter (R-PA)
Stevens (R-AK)
Sununu (R-NH)
Talent (R-MO)
Thomas (R-WY)
Voinovich (R-OH)
Warner (R-VA)

Posted by: Fitz on April 18, 2007 at 5:44 PM | PERMALINK

The Volokh Cosnpiracy has an interesting discussion, as well as a quote from Justice Thomas' concurring opinion. Look for this law to be challenged again soon.

Personally, I oppose the "partial birth abortion" (or whatever name appears on the bill from the medical professionals) but I think that the Congress exceeded its authority in banning it.

Posted by: MatthewRMarler on April 18, 2007 at 5:49 PM | PERMALINK

CHIPPING AWAY AT ROE v. WADE

Roe v. Wade was about first trimester abortions, so technically this is only "chipping away at abortion on demand", or "chipping away at late term abortions", or some such.

Posted by: MatthewRMarler on April 18, 2007 at 5:51 PM | PERMALINK

despite the fact that it contains no health exception provision whatsoever.

Actually, such a provision is contained, but it requires more than the mere assertion of the dr. performing the abortion.

Posted by: MatthewRMarler on April 18, 2007 at 5:55 PM | PERMALINK
I eagerly look forward to cmdicely explaining to daCascadian why he is utterly wrong...

daCascadian isn't so much wrong as making an argument that a kind of offense against fundamental law has been done for which there is no remedy outside the last argument of free peoples. Whether recourse to that avenue is warranted or not is another debate.

Posted by: cmdicely on April 18, 2007 at 5:57 PM | PERMALINK
Roe v. Wade was about first trimester abortions

Um, no, the holding in Roe v. Wade did not address only first trimester abortions.

Posted by: cmdicely on April 18, 2007 at 5:59 PM | PERMALINK

For anonymous:

The distinction on c-section is to illustrate the viability of the children who fall under this ruling, and why this differs from other and earlier incidents of abortion. And while historical precedent may be useful for legal determinations, what is legal is not always moral.

Posted by: orion on April 18, 2007 at 6:00 PM | PERMALINK

Well, that's why I asked the question. I am tempted to think that the people who argued against this law before the Court didn't do a great job, but I'm far from a expert in these matters. Is it common for a justice to write in his concurring opinion that he might have stuck down the law if a different legal argument had been put forth?

Posted by: Will Allen on April 18, 2007 at 6:01 PM | PERMALINK

There is already an underground market in morning after pills. As abortion pills become more common, more and more people will cut the doctors out of the loop any way. Criminalization won't end abortion, it will only make it a criminal activity. It will end the monopoly for doctors to perform abortions. As a result abortions will become cheaper, more common and less safe.

Posted by: bakho on April 18, 2007 at 6:02 PM | PERMALINK

The Democratically controlled Congress can simply make a change to this law and that would settle everything. That's what we should be working towards.

In case you forgot, for a bill to become law, the President must sign it. Unless you think Pres. Bush would sign a repeal of the ban, I don't think that's much of a strategy - do you?

Posted by: David Paul on April 18, 2007 at 6:02 PM | PERMALINK

what is legal is not always moral.

Like unplugging life support for Sun Hudson because his parents could not pay for ongoing care?

They do that in Texas all the time. (Where a hell of a lot of hospitals are HCA facilities. Hmmm...)

Posted by: Blue Girl, Red State (aka G.C.) on April 18, 2007 at 6:03 PM | PERMALINK

I hope they start legislating which gall bladder and liver surgical procedures doctors may perform next. It makes so much sense for Congresspeople to regulate things they know nothing about and have no expertise in. I'm sure the Founding Fathers are smiling blissfully from their graves over this wise and far-sighted decision.

Sheesh.....

Posted by: The Conservative Deflator on April 18, 2007 at 6:03 PM | PERMALINK

[content deleted]

Posted by: bushsupporter on April 18, 2007 at 6:12 PM | PERMALINK

Is there any way that this does not help the Democrats?

It will quite rightly raise fears of further incursions into women's right to control their bodies. That will tend to mobilize many people who don't vote now but who are part of the 2/3 of Americans who favor women's rights.

This is a political dynamic that should not be hard to grasp.

Posted by: tom on April 18, 2007 at 6:17 PM | PERMALINK

Nathan >"I eagerly look forward to..."

And I would be concerned about the opinions of either of you exactly why ?

You give insanity a bad name.

"Against stupidity, the very gods themselves must contend in vain." - Friedrich von Shille

Posted by: daCascadian on April 18, 2007 at 6:20 PM | PERMALINK

"The so-called ‘religous right’ has nothing to do with religion. They just organize their political agenda under the banner of religion because they are attracted to the security of orthodoxies. It could just as well be orthodox communism or Manchester capitalism. They are authoritarians by personal inclination or by their cultural background who want to make others bow to their sacred truths and the stability of paternal power. Their great enemy is pluralism and liberal democracy."

To belumregio:

This is always the problem with the blathering left - you always forget that the very foundation of liberal democracy is the adherence to the rule of law emanating from objective norms expressed through the consent of the governed. Without orthodoxy to a set of objective norms a democracy could never exist! It is, therefore, illogical and utter nonsense to argue in favor of liberal democracy when the entire basis of your philosophy and that of the hard left is that all morals and norms are relative and that no one set of norms is better than another (e.g., the "moral equivalency" argument your leftist cohorts constantly puked-up during the Cold War to justify communist sympathies). If the left had its way, there would be no law because no one would be permitted to impose their "orthodoxy" on anyone else.

Posted by: David Paul on April 18, 2007 at 6:29 PM | PERMALINK

It has probably aleady been said, but how come we think that a Supreme Court consisting of 7 white men, 1 black man who thinks he's white, and 1 women, 6 of whom attended the same law school, Harvard, 2 Yale, and 1 NorthWestern possibly be considered able to represent justice to the whole country, more than half of whom are women.

And then the right turn around and say we don't need to worry about racism!

This is exactly where the US system falls apart at present.

Posted by: notthere on April 18, 2007 at 6:33 PM | PERMALINK

cmdicely >"daCascadian isn't so much wrong as...another debate."

Interesting & thanks. I don`t see how I could possibly disagree.

That other debate needs to be had and very soon me thinks.

"A little patience, and we shall see the reign of witches pass over, their spells dissolve, and the people, recovering their true sight, restore their government to its true principles. It is true that in the meantime we are suffering deeply in spirit, and incurring the horrors of a war and long oppressions of enormous public debt..." - Thomas Jefferson

Posted by: daCascadian on April 18, 2007 at 6:40 PM | PERMALINK

notthere wrote: It has probably aleady been said, but how come we think that a Supreme Court consisting of 7 white men, 1 black man who thinks he's white, and 1 women, 6 of whom attended the same law school, Harvard, 2 Yale, and 1 NorthWestern possibly be considered able to represent justice to the whole country, more than half of whom are women

I agree. That's one reason why Scalia says the Congress is supposed to represent justice. The Supreme Court is supposed to represent the Constitution. That should be a technical, academic chore.

It may see odd to think of the Constitution as being different from justice, but there are lots of examples. It was unjust to prohibit women from voting, but the Constitution did so and the Supreme Court would have upheld the Consitution. That unjust Constitutional provision was changed by Amendment, just as slavery was.

Of course, Scalia's POV isn't held by all SC justices. Several of them are happy to re-write laws in order to conform to their idea of justice, regardless of wording of the Constitution.

Posted by: ex-liberal on April 18, 2007 at 6:49 PM | PERMALINK

"orion: What I can't figure out is why such a group of informed readers thinks it's acceptable to take a child that otherwise could be viable via c-section and purposely suck its brains out in-vitro so that it can be delivered dead."

This is so ignorant. It's dangerous to a woman to do a c-section before the due date. There are so many bad things that can occur during a pregnancy; it can be dangerous to the mother to continue it. I wonder what you would do if your wife were in such a position but her doctors hands were tied by the law. How about if only her health and future capacity to bear children were involved?

Posted by: nene on April 18, 2007 at 7:06 PM | PERMALINK

notthere >"...how come we think that a Supreme Court consisting of...exactly where the US system falls apart at present."

Excellent point & something, I think, that the last 40+ years has been all about. Obviously "We the people..." still haven`t managed to come up with a reasonable long lasting solution. Hopefully work will continue to be done on this going forward.

"Patriotism is not a short and frenzied outburst of emotion but the tranquil and steady dedication of a lifetime." - Adlai E. Stevenson, Jr.

Posted by: daCascadian on April 18, 2007 at 7:14 PM | PERMALINK

From Kennedys Opinion.

(this zero's in abit better than whats being thrown around}

[The State, from the] "inception of the pregnancy, maintains its own regulatory interest in protecting the life of the fetus that may become a child, [and this] cannot be set at naught by interpreting Casey's requirement of a health exception so it becomes tantamount to allowing a doctor to choose the abortion method he or she might prefer. Where it has a rational basis to act, and it does not impose an undue burden, the State may use its regulatory power to bar certain procedures and substitute others, all in furtherance of its legitimate interests in regulating the medical profession in order to promote respect for life, including life of the unborn."

Posted by: Fitz on April 18, 2007 at 7:29 PM | PERMALINK

I do not like the idea of partial birth abortions. However, this was a foolish decision. Women who are desperate for abortions will find a way to get them. Someone is always willing to do any job for money. They have just made it a whole lot less safe. Banning abortions is futile. It's like banning alcohol-that didn't work, either. You can't stop people who are determined to have an abortion.

Posted by: Susan on April 18, 2007 at 8:34 PM | PERMALINK

"You can't stop people who are determined to have an abortion"

No..but you can drastically reduce the overall number procured. Thats what happened after Roe, the number of abortions skyrocketed once it was legal. The numbers have gotten so high that more women now die in legal abortions then ever died in "backalley" abortions.

Posted by: Fitz on April 18, 2007 at 8:44 PM | PERMALINK

Where is your cite for that assertion, Fitz?

And PBA is not about "choice" it is a desperate medical procedure undertaken when there is no other choice.

Posted by: Blue Girl, Red State (aka G.C.) on April 18, 2007 at 8:50 PM | PERMALINK

As they say, elections have consequences- even stolen ones The monumental mayhem and destruction wrought by the Bush presidency will be soiling this nation's body politic, infrastructure, and foreign relations for years. The only upside of all this is that the lunatic right wing Republicans who enabled Bush will be out of power for a good long time, and most deservedly so. We'll all be a long time recovering from the ministrations of this fool. Unfortunately,the Roberts Court may be his most enduring legacy.

Posted by: Robert L on April 18, 2007 at 9:25 PM | PERMALINK

orion: The distinction on c-section is to illustrate the viability of the children who fall under this ruling.

Nonsense.

According to NPR, these partial birth abortions (late-term) are being performed during the second trimester, before the fetus is viable.

Therefore, delivery of the fetus where continued pregnancy is a threat to the mother's health simply isn't an option, by c-section or any other means, if you are looking to save the fetus.

The fetus won't live by definition: it is not viable.

Thus, you are condemning the woman to an operation that will do nothing for the fetus that must be removed (when the pregnancy endangers the mother and there are such conditions) or death.

Somehow, I'm not surprised at your choice of killing or injuring the mother for the simple sake of delivering a fetus that won't survive.

Great priorities you have.

Posted by: anonymous on April 18, 2007 at 11:18 PM | PERMALINK

I'm agnostic on the ruling today; as a youth I was pro-life, but the more I read and understand about reproductive issues, economic consequences as a result of unplanned/unwanted pregnancies, a growing belief in a more libertarian philosophy, etc., the more my views have changed to the point that I no longer espouse either position. I'm also male, and although I don't believe that life issues have a gender exclusion, I recognize that I will never have a dog in this particular fight.
That said, I hate reading expressions of a belief that the Supreme Court is somehow about a higher justice or "fixing" laws. SCOTUS is the highest court in the land, not the highest legislature; their function is to resolve differences based on existing law, be it state, federal, or Constitutional. All they can do is decide whether a law is legal or not, by the Constitution; they can't and shouldn't allow their own opinions to dictate whether a law is "good" or not. Congress writes the laws; if you don't like it, elect different people and change those laws. Put another way, after Congress passes a law you don't like, the Supreme Court is not a do-over.
I have seen very little discussion on this thread of the constitutional validity of this law.

Posted by: torrentprime on April 19, 2007 at 12:16 AM | PERMALINK

The ruling signifies to the conservative state legislators that their pending abortion restriction laws have a good chance of being upheld. The Court has changed and is now voting with the conservatives for the preeminence of the state over women's reproductive rights.

Is that the list who voted for this law? If so, Daschle compromised and voted for it, but still lost his reelection bid in 2004. Oh well.

Posted by: Brojo on April 19, 2007 at 12:34 AM | PERMALINK

For all you pontificating "conservative" nitwits, most of whom will never be pregnant and therefore will never have to face this, THIS is what late-term abortions are about:

"My name is Mary Dorothy Line. My husband,
Bill, and I are honored to be here today to speak for the many women
and families who have also come forward to tell their stories in
opposition to this terrible legislation.

Last April we were overjoyed to find out that I was
pregnant with our first child. Nineteen weeks into my pregnancy, an
ultrasound indicated that there was something wrong with our baby.

The doctor diagnosed a condition called hydrocephalus. Every
person's head contains fluid to protect and cushion the brain. But
if there is too much fluid, the brain cannot develop.

As practicing Catholics, when we have problems and
worries, we turn to prayer. As we waited to find our more from the
doctors, our whole family prayed together. My husband and I were
very scared, but we are strong people and believe that God would not
give us a problem if we couldn't handle it. This was our baby.
Everything would be fine. We never thought about abortion.

But the diagnosis was as bad as it could be. Our little
boy had a very advanced textbook case of hydrocephaly. All the
doctors told us there was no hope. We asked about in utero surgery,
about shunts to remove the fluid, but there was absolutely nothing we
could do. I cannot express the pain we still feel. This was our

precious little baby, and he was being taken from us before we even
had him.

This was not our choice, for not only was our son going
to die, but the complications of the pregnancy put my health in
danger, as well. If I carried to term, he might die in utero, and
the resulting toxins could cause a hemorrhage and possibly a
hysterectomy. The hydrocephaly also meant that a natural labor
risked rupturing my cervix and my uterus.

Several specialists recommended that we terminate the
pregnancy. I thank God every day that I had this safe medical option
available to me, especially now that I am pregnant again and
expecting a baby in September.

I pray every day, I really do, that this will never
happen to anyone else. But it will. Those of us unfortunate enough
to have to live this nightmare need a procedure that will give us
hope for the future."

For the love of Pete, is it too much to ask that you educate yourselves about a subject before you spout off?

Posted by: CatStaff on April 19, 2007 at 1:10 AM | PERMALINK

The significance of this ruling is as follows: This is the start of the right wing gearing up to try to overturn Roe V. Wade or at least tackle other points of abortion as soon as they can since their time is limited. This is them making their mark saying they have the political authority to tell women what to do with their bodies. This is troubling. We do not own each other and therefore have no right to tell one another what to do when it comes to whichever medical treatment they choose; whether for it or against it. Perhaps when the Deomcrats get into office come 2008 and start working on limiting gun control, the death penalty, and finally ending this lie based war the right wing will FINALLY understand.

Posted by: Hope on April 19, 2007 at 4:59 AM | PERMALINK


George W. Bush and his right wing supporters have been doing their best to subvert our democracy by injecting into our government and laws their religious views. They can rightly claim a major success in yesterday's Supreme Court decision subverting a woman's right to choose.

The NY Times has an excellent editorial decrying this decision, pointing out, among other things, that for the first time it allowed a law to ignore any effect on a woman's health justified a law on the basis of some moral view of repecting a life within a woman. In upholding this legislation outlawing a medical procedure, the Court ignored legal precedent and the evidence that the procedure is often the safest medical alternative.

So Congress can dictate medical procedures? Can it outlaw radiation instead of surgery to treat prostate cancer? Or vice-versa? A woman whose health is adversely affected by denial of dilation and extraction should be permitted to sue the government and the Justices who ignored danger to her health.

But who is ultimately responsible for this retrograde action? The voters who re-elected George Bush in the face of overwhelming evidence of his misguided actions and incompetence. Contributing culprits are the candidates who failed to alert voters of the threat to our legal system and the Democrats who so poorly interrogated Roberts and Alito, perhaps believing their statement of respect for precedent, and let these two slip into supreme judicial robes.

Homer www.altara.blogspot.com

Posted by: Homer Hewitt on April 19, 2007 at 9:32 AM | PERMALINK

With all the handwringing over Gonzales v. Carhart It is important to note that the United States has some of the most liberal abortion laws in the world. This is the case even when compared to abortion laws in western Europe. This demonstrated when one contrasts the differences between the American solution and the European style solution. The American version resulted from the Supreme Court deciding the issue while the European solutions were formed by their legislatures.

America > No regulation of abortion permitted for the interest of preserving the life of the fetus until viability at 18- 24 weeks (i.e. 6 months)

Europe > All of the western countries reviewed allowed regulation in the interest of the fetus beginning around 10-12 weeks. Sweden latest at 18 weeks

America >No waiting period permitted, even 24 hours is interference with women's freedom of choice.

Europe >Brief waiting period before request for for abortion and the procedure.

America >No alternatives to abortion will be given to women as part of abortion process.

Europe > Women will be informed about alternatives to abortion, including #1. adoption. #2. maternal assistance provided if the women chooses to bear the child.

Europe > Does not have a large private, profit- making abortion industry Abortion procedures are carefully regulated. One of the regulations is a limit to the percent of abortion procedures at any given site.

America > The courts speak about a "constitutional right" to abortion. The U.S. is the only country that states its a "right" to have an abortion. The values advocated are #1. individual privacy. #2. woman's sovereignty over her body

Europe > Statutes start by stating an affirmation of sanctity of human life, but state an abortion is freely available in "distress" (France), or "hardship" (German) in early pregnancy. The values advocated are #1. respect for human life #2. compassion for women in vulnerable circumstances

Posted by: Fitz on April 19, 2007 at 12:30 PM | PERMALINK

Indeed, while this particular ruling isn't going to change a whole lot when it comes to a woman's right to choose, it certainly doesn't bode well for those rights in the future. Because you know that this decision is going to embolden conservative states to push the limits and bring wider-ranging bans to the SCOTUS.

Posted by: The Political Gamer on April 19, 2007 at 5:30 PM | PERMALINK

What no one seems to have noted so far: the Supreme Court ruled that a federal law was applicable in a particular case. Congress can repeal the law. There is no need to complain about the Supreme Court.


So Congress can dictate medical procedures?

Yes. Congress has allowed the FDA to prohibit the sale of medications and medical devices. States have enacted laws requiring medical procedures to be performed in sterile rooms, and only to be performed by licensed practitioners. You need a parent's consent (or legal guardian's consent) to perform an appendectomy or tonsilectomy on a minor. The list of legal restrictions on doctors' judgments is quite long.

Posted by: spider on April 19, 2007 at 7:55 PM | PERMALINK

"A lot of us wish that Alito weren't there and O'Connor were there," Senate Majority Leader Harry Reid, D-Nevada, who opposed Alito's nomination, said.

Yet Reid voted for the law the court upheld.

Reid doesn't seem to know how our government works. He's making Frist look like a genius.

Posted by: spider on April 19, 2007 at 8:19 PM | PERMALINK




 

 

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