Law School Discussion

Off-Topic Area => Politics and Law-Related News => Topic started by: leostrauss on April 18, 2007, 07:53:20 AM

Title: Partial Birth Abortion Ban upheld
Post by: leostrauss on April 18, 2007, 07:53:20 AM
They won Kennedy over. Thoughts??? I think Kennedy wrote the opinion narrowly so as to avoid approaching roe or casey. . . roberts probably sees a scheme. What are your thoughts?

http://www.foxnews.com/story/0,2933,266724,00.html
Title: Re: Partial Birth Abortion Ban upheld
Post by: Julie Fern on April 18, 2007, 09:12:44 AM
never wear white shoes after labor day.
Title: Re: Partial Birth Abortion Ban upheld
Post by: deedeeleigh on April 18, 2007, 09:33:29 AM
Has this really been proven:

Quote
(E)  The physician credited with developingthe partial-birth abortion procedure has testified that he has never encountered a situation where a partial-birth abortion was medically necessary to achieve the desired outcome and, thus, is never medically necessary to preserve the health of a woman.

I'm not that familiar with the different abortion options--is there another medical abortion option for women this far along, in case they do need an abortion for medical reasons?
Title: Re: Partial Birth Abortion Ban upheld
Post by: leostrauss on April 18, 2007, 09:36:28 AM
This case distinguished (I think - I haven't gotten to read the thing yet . . . I listened to the oral argument a month ago or something) between D & E and D&X procedures. It is too gross for me to type the difference, but this case deals with the one and not the other. So, there are many options . . . also, the argument about mother's health cuts both ways if you think about it.
Title: Re: Partial Birth Abortion Ban upheld
Post by: skeeball on April 18, 2007, 09:43:18 AM
Has this really been proven:

Quote
(E)  The physician credited with developingthe partial-birth abortion procedure has testified that he has never encountered a situation where a partial-birth abortion was medically necessary to achieve the desired outcome and, thus, is never medically necessary to preserve the health of a woman.

I'm not that familiar with the different abortion options--is there another medical abortion option for women this far along, in case they do need an abortion for medical reasons?

I think the *partial birth abortion* in question is any abortion that happens after a certain number of weeks. It's not like they're trying to stop X type of procedure that happens at 27 weeks vs. Y procedure at 27 weeks.

As to whether or not you can prove what's in the quote...if a woman gets pregnant and is physically incapable of bearing the child, she's probably going to have an abortion ASAP and not 27 weeks into the pregnancy.

The procedure in question is VERY VERY rare. It only happens when a.) the mother is really young and doesn't realize she's pregnant until the 2nd trimester b.) some kind of barrier (24 hour waiting period requirement, distance from a provider, etc.) has kept her from getting one sooner or c.) something has gone terribly wrong with the pregnancy the fetus wouldn't survive if carried to term.

This case distinguished (I think - I haven't gotten to read the thing yet . . . I listened to the oral argument a month ago or something) between D & E and D&X procedures. It is too gross for me to type the difference, but this case deals with the one and not the other. So, there are many options . . . also, the argument about mother's health cuts both ways if you think about it.

Hmm maybe you're right.
Title: Re: Partial Birth Abortion Ban upheld
Post by: leostrauss on April 18, 2007, 10:21:23 AM
Ok, I get it now. I'll try to explain:

There are two cases that have been ruled on today - Gonzales v Carhart (first case) and Gonzales v Planned Parenthood.

Both involve essentially the same thing . . . here's the issue in both cases:

Is the partial birth abortion ban which makes it illegal for a woman to have a D&X procedure (fetal demise past outside of the uterus) constitutional?

Casey (an earlier case) held that the mother's health matters in abortion decisions, and thus it must be allowed when the mother's life is at stake (somebody correct me where I wander). So, these current cases are important because they don't speak to this distinction (the law doesn't have an exception for health of the mother).

This law doesn't make the much more common D&E procedure illegal (fetal demise in the uterus as opposed to outside). Thus, it attacks the D&X procedure only on the grounds that it is particularly gruesome, blurs the line between abortion and infanticide, and is never medically necessary.

I hope this helps, and I hope I haven't made any glaring mistakes in my analysis . . . I am certainly not the authority here on such issues, but I very well may be the person most interested, and thus I want to hear what others think. I also want their corrections on my analysis.
Title: Re: Partial Birth Abortion Ban upheld
Post by: skeeball on April 18, 2007, 10:26:17 AM
You could be right.

My understanding was that people were trying to stop all abortions past a certain number of weeks. But since they're actually outlined two separate kinds of procedures I'm probably wrong.

It's such a small number of procedures I don't think it means much anyway.
Title: Re: Partial Birth Abortion Ban upheld
Post by: vercingetorix on April 18, 2007, 10:26:49 AM
how anyone could justify a third trimester abortion is beyond the pale...in this case a c-section is less risky and clearly the better option (for mother and child).  you are dealing with a viable fetus at this point (although this is a self-limiting argument, as science progresses we will be able to keep even the youngest pregnancies alive exutero).  
Title: Re: Partial Birth Abortion Ban upheld
Post by: leostrauss on April 18, 2007, 10:28:51 AM
You could be right.

My understanding was that people were trying to stop all abortions past a certain number of weeks. But since they're actually outlined two separate kinds of procedures I'm probably wrong.

It's such a small number of procedures I don't think it means much anyway.

You're certainly right that people are trying to outlaw abortion after a certain number of weeks. Heck, they want (explicitly in Scalia and Thomas' opinions apparently) Casey and Roe overturned altogether! I think though, that if you listen to these cases (which I am doing right now for a second time, you will find that they are very specific in issue. I think that's why Kennedy was able to side with the majority - he could write a very narrow ruling that doesn't touch Roe/Casey etc.
Title: Re: Partial Birth Abortion Ban upheld
Post by: leostrauss on April 18, 2007, 10:29:39 AM
how anyone could justify a third trimester abortion is beyond the pale...in this case a c-section is less risky and clearly the better option (for mother and child).  you are dealing with a viable fetus at this point (although this is a self-limiting argument, as science progresses we will be able to keep even the youngest pregnancies alive exutero).  

Actually, in these cases, most of the medical record dealt with situations in which the fetus wasn't viable outside the womb. The fetus would die no matter what.
Title: Re: Partial Birth Abortion Ban upheld
Post by: vercingetorix on April 18, 2007, 10:33:23 AM
you say "most".  according to medical literature third trimester gestations are highly survivable exutero.  in fact, a girl born at 5 months just went home after a lengthy stay in a NICU.
Title: Re: Partial Birth Abortion Ban upheld
Post by: skeeball on April 18, 2007, 10:34:33 AM
I'd say in a perfect world we wouldn't even need to be having this discussion.
Title: Re: Partial Birth Abortion Ban upheld
Post by: leostrauss on April 18, 2007, 10:36:12 AM
you say "most".  according to medical literature third trimester gestations are highly survivable exutero.  in fact, a girl born at 5 months just went home after a lengthy stay in a NICU.

Yeah, I think you're right, and as I listen, Stephens is really hammering Clement on this issue . . . the point is, that these fetuses ARE NOT GOING TO LIVE . . .whether viable or not. This law outlaws ONE PARTICULAR PROCEDURE. win or lose, these fetuses will not survive. That has to be clear.
Title: Re: Partial Birth Abortion Ban upheld
Post by: deedeeleigh on April 18, 2007, 10:36:53 AM

This law doesn't make the much more common D&E procedure illegal (fetal demise in the uterus as opposed to outside). Thus, it attacks the D&X procedure only on the grounds that it is particularly gruesome, blurs the line between abortion and infanticide, and is never medically necessary.



Thanks, this is good info leo. It's a relief that this law doesn't make the more common (and apparently the option that is used for medical necessity) procedure illegal. But I do believe the fear is that it's a step in that direction.
Title: Re: Partial Birth Abortion Ban upheld
Post by: leostrauss on April 18, 2007, 10:37:55 AM
Even if the fetus is viable in these cases (the ones the court dealt with in the Gonzales pair), the abortion/infantacide whatever is going to happen. you aren't taking a baby home . .. that decision is made well before. We are strictly deciding how to proceed: D&X or D&Y
Title: Re: Partial Birth Abortion Ban upheld
Post by: leostrauss on April 18, 2007, 10:41:32 AM

This law doesn't make the much more common D&E procedure illegal (fetal demise in the uterus as opposed to outside). Thus, it attacks the D&X procedure only on the grounds that it is particularly gruesome, blurs the line between abortion and infanticide, and is never medically necessary.



Thanks, this is good info leo. It's a relief that this law doesn't make the more common (and apparently the option that is used for medical necessity) procedure illegal. But I do believe the fear is that it's a step in that direction.

Fear . . .that depends on to whom you speak. I just know that Kennedy may have gone with the anti-Roe brigade here, but he didn't go any further than he absolutely had to  . . . I think he relishes his current position as important vote on the court. I think there's almost a scheme to keep people guessing. I doubt he'll overturn Roe. Further, Stephens will make it well past 2008, and thus the next appointee will be critical and most likely liberal (if Bush/Republican popularity is any indicator). The next nominee confirmation hearings will be an absolute BLOODBATH! fun . . .that's why I love this stuff.
 
Also, you're welcome, I wouldn't take my word for these things though. I've been wrong in every thread in which I've discussed Con Law heretofor.
Title: Re: Partial Birth Abortion Ban upheld
Post by: theprocrastinator on April 18, 2007, 10:48:26 AM
Ok, I get it now. I'll try to explain:

There are two cases that have been ruled on today - Gonzales v Carhart (first case) and Gonzales v Planned Parenthood.

Both involve essentially the same thing . . . here's the issue in both cases:

Is the partial birth abortion ban which makes it illegal for a woman to have a D&X procedure (fetal demise past outside of the uterus) constitutional?

Casey (an earlier case) held that the mother's health matters in abortion decisions, and thus it must be allowed when the mother's life is at stake (somebody correct me where I wander). So, these current cases are important because they don't speak to this distinction (the law doesn't have an exception for health of the mother).

This law doesn't make the much more common D&E procedure illegal (fetal demise in the uterus as opposed to outside). Thus, it attacks the D&X procedure only on the grounds that it is particularly gruesome, blurs the line between abortion and infanticide, and is never medically necessary.

I hope this helps, and I hope I haven't made any glaring mistakes in my analysis . . . I am certainly not the authority here on such issues, but I very well may be the person most interested, and thus I want to hear what others think. I also want their corrections on my analysis.

I haven't read the decision yet, but its my impression that the court's (read: Kennedy's) reasoning on this issue was that abortion regulations don't need to have such an exception where there is no evidence that the procedure would ever be medically necessary for the health of the mother. In other words, you only need an exception if it can be proved that the effect of the regulation would be to prevent some mothers whose health is in danger from recieving an abortion. Since the evidence regarding the procedure in this case tended to show that another abortion procedure would always be available in such a situation, there was no need for an exception.

If the statute is ever challenged in the future as applied to a particular case in which the person charged with violating it can prove that it actually was necessary for the health of the mother than I would expect a different outcome.
Title: Re: Partial Birth Abortion Ban upheld
Post by: vercingetorix on April 18, 2007, 10:53:19 AM
third trimester abortions are infanticide, that is precisely my point.  the callous tone of the "abortion/infanticide is going to happen. you aren't taking the baby home" sent chills down my spine. the viability issue is a band-aid fix used by abortion proponents...in 100 years who knows how early we will be able to preserve human life outside the womb...you can be certain given the accelerating rate of technology that it will be well into the 2nd trimester.  saying otherwise is bad science.  never mind that the Roe V. Wade decision was written using intentionally vague and weak language because the court wanted the issue revisited (right to privacy, what the hell is that?).  the justices were deeply troubled by this issue and probably never envisioned we would be talking about the legality of crushing the head of a 5 or 6 month old baby to protect the woman's "right to privacy".  besides everytime this comes up the knee jerk pro-choice crowd always claims the sky is fallling and that we are on the verge of outlawing abortion.  even if the court overturned Roe v. Wade, the decision would go to the states, abortion would not become illegal.  
Title: Re: Partial Birth Abortion Ban upheld
Post by: leostrauss on April 18, 2007, 10:58:01 AM
Ok, I get it now. I'll try to explain:

There are two cases that have been ruled on today - Gonzales v Carhart (first case) and Gonzales v Planned Parenthood.

Both involve essentially the same thing . . . here's the issue in both cases:

Is the partial birth abortion ban which makes it illegal for a woman to have a D&X procedure (fetal demise past outside of the uterus) constitutional?

Casey (an earlier case) held that the mother's health matters in abortion decisions, and thus it must be allowed when the mother's life is at stake (somebody correct me where I wander). So, these current cases are important because they don't speak to this distinction (the law doesn't have an exception for health of the mother).

This law doesn't make the much more common D&E procedure illegal (fetal demise in the uterus as opposed to outside). Thus, it attacks the D&X procedure only on the grounds that it is particularly gruesome, blurs the line between abortion and infanticide, and is never medically necessary.

I hope this helps, and I hope I haven't made any glaring mistakes in my analysis . . . I am certainly not the authority here on such issues, but I very well may be the person most interested, and thus I want to hear what others think. I also want their corrections on my analysis.

I haven't read the decision yet, but its my impression that the court's (read: Kennedy's) reasoning on this issue was that abortion regulations don't need to have such an exception where there is no evidence that the procedure would ever be medically necessary for the health of the mother. In other words, you only need an exception if it can be proved that the effect of the regulation would be to prevent some mothers whose health is in danger from recieving an abortion. Since the evidence regarding the procedure in this case tended to show that another abortion procedure would always be available in such a situation, there was no need for an exception.

If the statute is ever challenged in the future as applied to a particular case in which the person charged with violating it can prove that it actually was necessary for the health of the mother than I would expect a different outcome.

I thoroughly agree, and this is why I don't think this is a big deal to people afraid of the overturn of Roe, nor a big victory for the anti-Roe groups. This is specific.

Why didn't the court enjoin the statute, but require medical evidence of the medical necessity of the procedure for the health of the mother (thus to sustain Casey which should govern here) to be gained before the procedure can be performed? It seems this would dispose of the controversy, and it seems a good argument when many doctors say it is necessary for the health of the mother (which is hotly debated).
Title: Re: Partial Birth Abortion Ban upheld
Post by: theprocrastinator on April 18, 2007, 11:09:56 AM
I thoroughly agree, and this is why I don't think this is a big deal to people afraid of the overturn of Roe, nor a big victory for the anti-Roe groups. This is specific.

Why didn't the court enjoin the statute, but require medical evidence of the medical necessity of the procedure for the health of the mother (thus to sustain Casey which should govern here) to be gained before the procedure can be performed? It seems this would dispose of the controversy, and it seems a good argument when many doctors say it is necessary for the health of the mother (which is hotly debated).

Well, first of all Casey wasn't changed. The stuff about the health of the mother exception in that case was in a part of the decision that was only supported by a plurality, so its not entirely binding in its own right. It did become a majority rule later, in Stenberg v. Carhart.

In any case, that rule wasn't overturned in this case (if my impression of the decision from the media is correct), the court just clarified its scope. Statutes that would otherwise prevent a mother whose health is in danger from recieving an abortion still must contain such an exception. The court merely found that this would not be the effect of this statute, and thus the rule from casey and stenberg is not applicable.

Finally, the court doesn't have the authority to alter the wording or operation of the statute, it can only overturn or uphold it based on whether or not it is constitutional. That's why they didn't take the approach that you suggest.
Title: Re: Partial Birth Abortion Ban upheld
Post by: leostrauss on April 18, 2007, 11:16:58 AM
third trimester abortions are infanticide, that is precisely my point.  the callous tone of the "abortion/infanticide is going to happen. you aren't taking the baby home" sent chills down my spine. the viability issue is a band-aid fix used by abortion proponents...in 100 years who knows how early we will be able to preserve human life outside the womb...you can be certain given the accelerating rate of technology that it will be well into the 2nd trimester.  saying otherwise is bad science.  never mind that the Roe V. Wade decision was written using intentionally vague and weak language because the court wanted the issue revisited (right to privacy, what the hell is that?).  the justices were deeply troubled by this issue and probably never envisioned we would be talking about the legality of crushing the head of a 5 or 6 month old baby to protect the woman's "right to privacy".  besides everytime this comes up the knee jerk pro-choice crowd always claims the sky is fallling and that we are on the verge of outlawing abortion.  even if the court overturned Roe v. Wade, the decision would go to the states, abortion would not become illegal.  

whoah man, don't pretend you know my position on abortion or on this case. . . for the sake of pete's dragon calm down. I am not being callous, rather, I am underscoring the LIMITED application of this case.
Title: Re: Partial Birth Abortion Ban upheld
Post by: leostrauss on April 18, 2007, 11:19:09 AM
I thoroughly agree, and this is why I don't think this is a big deal to people afraid of the overturn of Roe, nor a big victory for the anti-Roe groups. This is specific.

Why didn't the court enjoin the statute, but require medical evidence of the medical necessity of the procedure for the health of the mother (thus to sustain Casey which should govern here) to be gained before the procedure can be performed? It seems this would dispose of the controversy, and it seems a good argument when many doctors say it is necessary for the health of the mother (which is hotly debated).

Well, first of all Casey wasn't changed. The stuff about the health of the mother exception in that case was in a part of the decision that was only supported by a plurality, so its not entirely binding in its own right. It did become a majority rule later, in Stenberg v. Carhart.

In any case, that rule wasn't overturned in this case (if my impression of the decision from the media is correct), the court just clarified its scope. Statutes that would otherwise prevent a mother whose health is in danger from recieving an abortion still must contain such an exception. The court merely found that this would not be the effect of this statute, and thus the rule from casey and stenberg is not applicable.

Finally, the court doesn't have the authority to alter the wording or operation of the statute, it can only overturn or uphold it based on whether or not it is constitutional. That's why they didn't take the approach that you suggest.

So it's even more narrow than i thought? wowza
Title: Re: Partial Birth Abortion Ban upheld
Post by: theprocrastinator on April 18, 2007, 11:42:01 AM
third trimester abortions are infanticide, that is precisely my point.  the callous tone of the "abortion/infanticide is going to happen. you aren't taking the baby home" sent chills down my spine. the viability issue is a band-aid fix used by abortion proponents...in 100 years who knows how early we will be able to preserve human life outside the womb...you can be certain given the accelerating rate of technology that it will be well into the 2nd trimester.  saying otherwise is bad science.  never mind that the Roe V. Wade decision was written using intentionally vague and weak language because the court wanted the issue revisited (right to privacy, what the hell is that?).  the justices were deeply troubled by this issue and probably never envisioned we would be talking about the legality of crushing the head of a 5 or 6 month old baby to protect the woman's "right to privacy".  besides everytime this comes up the knee jerk pro-choice crowd always claims the sky is fallling and that we are on the verge of outlawing abortion.  even if the court overturned Roe v. Wade, the decision would go to the states, abortion would not become illegal. 

By calling third trimester abortions 'infanticide' you're implying that the fetus is actually a person. From a moral, philosophical, and medical standpoint there may be some value to this assertion. From a legal standpoint, however, it was settled long before Roe that when the constitution refers to a 'person' it only refers to people who have been born alive. If you think that this constitutional interpretation of the word 'person' is wrong, that's fine, but realize that you're opening up a can of worms that extends far beyond the abortion situation.

Also, the 'right to privacy' didn't come out of nowhere. It was first recognized in the contraception cases, not Roe. The practice of finding un-enumerated substantive rights in the due process clause (substantive due process) began long before those cases as well. As early as 1897 the court found that the word 'liberty' in the due process clause encompassed a lot more than just freedom from incarceration. Since then a number of rights have gained and lost favor (the right to contract has had an especially rocky development), with privacy being just one many incarnations of the doctrine.
 
With all that being said, the only real legitimate pro-life legal arguments are:

1) The word 'person' in the constitution refers to fetuses either from the moment of conception or at some other time before they are born alive

2) Though the fetus itself doesn't have any constitutional protection, the state's right to regulate abortion as a part of its inherent police powers (which has been recognized by the court) outweighs the mother's right to personal autonomy (privacy).

3)  The only individual rights retained by the people are those that are specifically enumerated in the constitution. Therefore the substantive due process doctrine, which is not a literal part of the constitution, should be overturned as a whole. In support of this argument, I would also mention that the SDP doctrine has essentially allowed for the court to act as a legislature.

4) Though substantive due process is legitimate and the due process clause does allow the court to recognize and protect un-enumerated rights, the right to an abortion and/or the right to personal autonomy/privacy is not a fundamental due process right.
Title: Re: Partial Birth Abortion Ban upheld
Post by: leostrauss on April 18, 2007, 11:44:16 AM
third trimester abortions are infanticide, that is precisely my point.  the callous tone of the "abortion/infanticide is going to happen. you aren't taking the baby home" sent chills down my spine. the viability issue is a band-aid fix used by abortion proponents...in 100 years who knows how early we will be able to preserve human life outside the womb...you can be certain given the accelerating rate of technology that it will be well into the 2nd trimester.  saying otherwise is bad science.  never mind that the Roe V. Wade decision was written using intentionally vague and weak language because the court wanted the issue revisited (right to privacy, what the hell is that?).  the justices were deeply troubled by this issue and probably never envisioned we would be talking about the legality of crushing the head of a 5 or 6 month old baby to protect the woman's "right to privacy".  besides everytime this comes up the knee jerk pro-choice crowd always claims the sky is fallling and that we are on the verge of outlawing abortion.  even if the court overturned Roe v. Wade, the decision would go to the states, abortion would not become illegal. 

By calling third trimester abortions 'infanticide' you're implying that the fetus is actually a person. From a moral, philosophical, and medical standpoint there may be some value to this assertion. From a legal standpoint, however, it was settled long before Roe that when the constitution refers to a 'person' it only refers to people who have been born alive. If you think that this constitutional interpretation of the word 'person' is wrong, that's fine, but realize that you're opening up a can of worms that extends far beyond the abortion situation.

Also, the 'right to privacy' didn't come out of nowhere. It was first recognized in the contraception cases, not Roe. The practice of finding un-enumerated substantive rights in the due process clause (substantive due process) began long before those cases as well. As early as 1897 the court found that the word 'liberty' in the due process clause encompassed a lot more than just freedom from incarceration. Since then a number of rights have gained and lost favor (the right to contract has had an especially rocky development), with privacy being just one many incarnations of the doctrine.
 
With all that being said, the only real legitimate pro-life legal arguments are:

1) The word 'person' in the constitution refers to fetuses either from the moment of conception or at some other time before they are born alive

2) Though the fetus itself doesn't have any constitutional protection, the state's right to regulate abortion as a part of its inherent police powers (which has been recognized by the court) outweighs the mother's right to personal autonomy (privacy).

3)  The only individual rights retained by the people are those that are specifically enumerated in the constitution. Therefore the substantive due process doctrine, which is not a literal part of the constitution, should be overturned as a whole. A corollary to this argument is that the SDP doctrine has essentially allowed for the court to act as a legislature.

4) Though substantive due process is legitimate and the due process clause does allow the court to recognize and protect un-enumerated rights, the right to an abortion and/or the right to personal autonomy/privacy is not a fundamental due process right.

Are you in law school? How do you know all this Con Law? I actually know what you just said, but it's unbelievable to me that you could know all this stuff without some sort of graduate school or a freaky obsession (which is what I have).
Title: Re: Partial Birth Abortion Ban upheld
Post by: theprocrastinator on April 18, 2007, 11:51:40 AM
Are you in law school? How do you know all this Con Law? I actually know what you just said, but it's unbelievable to me that you could know all this stuff without some sort of graduate school or a freaky obsession (which is what I have).

Haha. Yeah, I'm actually graduating from law school in a couple of weeks. I usually show up on this board during finals time when I should be studying.
Title: Re: Partial Birth Abortion Ban upheld
Post by: leostrauss on April 18, 2007, 11:53:23 AM
Are you in law school? How do you know all this Con Law? I actually know what you just said, but it's unbelievable to me that you could know all this stuff without some sort of graduate school or a freaky obsession (which is what I have).

Haha. Yeah, I'm actually graduating from law school in a couple of weeks. I usually show up on this board during finals time when I should be studying.

Thank God, and thank you for posting on here. It's very helpful to me every time you arrive.
Title: Re: Partial Birth Abortion Ban upheld
Post by: theprocrastinator on April 18, 2007, 11:57:22 AM
Are you in law school? How do you know all this Con Law? I actually know what you just said, but it's unbelievable to me that you could know all this stuff without some sort of graduate school or a freaky obsession (which is what I have).

Haha. Yeah, I'm actually graduating from law school in a couple of weeks. I usually show up on this board during finals time when I should be studying.

Thank God, and thank you for posting on here. It's very helpful to me every time you arrive.

No problem. It actually helps me out too. I was studying for my crim pro final when I posted that stuff in the drug testing thread yesterday. Nothing helps me straighten concepts out in my own head better than trying to explain them to other people.
Title: Re: Partial Birth Abortion Ban upheld
Post by: leostrauss on April 18, 2007, 12:00:35 PM
Are you in law school? How do you know all this Con Law? I actually know what you just said, but it's unbelievable to me that you could know all this stuff without some sort of graduate school or a freaky obsession (which is what I have).

Haha. Yeah, I'm actually graduating from law school in a couple of weeks. I usually show up on this board during finals time when I should be studying.


Me too. I enjoy and learn legal things best by playing with hypos when a reputation (real life or imaginary on line) is on the line.
Thank God, and thank you for posting on here. It's very helpful to me every time you arrive.

No problem. It actually helps me out too. I was studying for my crim pro final when I posted that stuff in the drug testing thread yesterday. Nothing helps me straighten concepts out in my own head better than trying to explain them to other people.
Title: Re: Partial Birth Abortion Ban upheld
Post by: vercingetorix on April 18, 2007, 12:07:17 PM
i disagree with abortion based on moral/philosophical grounds.  my assertion regarding the use of right to privacy as THE argument upon which Roe v. Wade hinges is factually correct (and i think it is a weakly written arguement, and the majority opinion really struggled with the decision, a fact which is part of the historical record).  my point (not stated nearly as eloquently as yours) is that i would attack Roe v. Wade using the right to privacy issue as you state it in points 3 and 4.
Title: Re: Partial Birth Abortion Ban upheld
Post by: leostrauss on April 18, 2007, 12:11:17 PM
i disagree with abortion based on moral/philosophical grounds.  my assertion regarding the use of right to privacy as THE argument upon which Roe v. Wade hinges is factually correct (and i think it is a weakly written arguement, and the majority opinion really struggled with the decision, a fact which is part of the historical record).  my point (not stated nearly as eloquently as yours) is that i would attack Roe v. Wade using the right to privacy issue as you state it in points 3 and 4.

You're missing the point of today's cases I'm afraid, or you are just hi-jacking this thread. Your argument against Roe appears canned. For the record, I have no strong opinion on abortion . . . I go back and forth continually perplexed. I take various sides in arguments just for fun. These cases are about a particular statute and a particular procedure. The opinions in the cases did little/nothing to effect Roe.
Title: Re: Partial Birth Abortion Ban upheld
Post by: SugarJ on April 18, 2007, 07:34:21 PM
F*ing Alito.  >:(
Title: Re: Partial Birth Abortion Ban upheld
Post by: SugarJ on April 18, 2007, 07:36:33 PM
third trimester abortions are infanticide, that is precisely my point.  the callous tone of the "abortion/infanticide is going to happen. you aren't taking the baby home" sent chills down my spine. the viability issue is a band-aid fix used by abortion proponents...in 100 years who knows how early we will be able to preserve human life outside the womb...you can be certain given the accelerating rate of technology that it will be well into the 2nd trimester.  saying otherwise is bad science.  never mind that the Roe V. Wade decision was written using intentionally vague and weak language because the court wanted the issue revisited (right to privacy, what the hell is that?).  the justices were deeply troubled by this issue and probably never envisioned we would be talking about the legality of crushing the head of a 5 or 6 month old baby to protect the woman's "right to privacy".  besides everytime this comes up the knee jerk pro-choice crowd always claims the sky is fallling and that we are on the verge of outlawing abortion.  even if the court overturned Roe v. Wade, the decision would go to the states, abortion would not become illegal. 

By calling third trimester abortions 'infanticide' you're implying that the fetus is actually a person. From a moral, philosophical, and medical standpoint there may be some value to this assertion. From a legal standpoint, however, it was settled long before Roe that when the constitution refers to a 'person' it only refers to people who have been born alive. If you think that this constitutional interpretation of the word 'person' is wrong, that's fine, but realize that you're opening up a can of worms that extends far beyond the abortion situation.

Also, the 'right to privacy' didn't come out of nowhere. It was first recognized in the contraception cases, not Roe. The practice of finding un-enumerated substantive rights in the due process clause (substantive due process) began long before those cases as well. As early as 1897 the court found that the word 'liberty' in the due process clause encompassed a lot more than just freedom from incarceration. Since then a number of rights have gained and lost favor (the right to contract has had an especially rocky development), with privacy being just one many incarnations of the doctrine.
 
With all that being said, the only real legitimate pro-life legal arguments are:

1) The word 'person' in the constitution refers to fetuses either from the moment of conception or at some other time before they are born alive

2) Though the fetus itself doesn't have any constitutional protection, the state's right to regulate abortion as a part of its inherent police powers (which has been recognized by the court) outweighs the mother's right to personal autonomy (privacy).

3)  The only individual rights retained by the people are those that are specifically enumerated in the constitution. Therefore the substantive due process doctrine, which is not a literal part of the constitution, should be overturned as a whole. In support of this argument, I would also mention that the SDP doctrine has essentially allowed for the court to act as a legislature.

4) Though substantive due process is legitimate and the due process clause does allow the court to recognize and protect un-enumerated rights, the right to an abortion and/or the right to personal autonomy/privacy is not a fundamental due process right.

TITCR.

We actually just did the contraception cases in my con law class yesterday, and we're doing Roe v. Wade tomorrow. Perfect timing.
Title: Re: Partial Birth Abortion Ban upheld
Post by: euphrasie on April 18, 2007, 07:59:18 PM
There are not enough words to express my disdain.
Title: Re: Partial Birth Abortion Ban upheld
Post by: xoxolives on April 18, 2007, 08:08:54 PM
There are not enough words to express my disdain.

Oh noes!  Now I have to get my late term abortion by the D&E method instead of the D&X!
Title: Re: Partial Birth Abortion Ban upheld
Post by: leostrauss on April 19, 2007, 09:37:26 AM
Kinda off topic but...cant we call it


"intact dilation and extraction" abortion --the medical term for the type of abortion?

I have no idea why America has embraced right-wing spin doctor terminology.  Partial birth abortion is almost as good as the 'death tax'


just sayin'

Sure, call it what you want. Just be careful not to go over the details of how the procedure works . . . that's the left wing spin - silence about exactly what goes on here. Having read and read over the past two days about these cases, and not having formed any strong opinion about abortion generally, I am now to the point that I can't bear to say that these procedures are ok, unless the mother is definitely going to die without them. I think it more humane to let the baby be born and then allow it to "expire" (is that term, or "fetal demise" as they say in the opinion another example of the right wing spin you mention??? please) on its own. I can't even type the things they do in these procedures. It really is quite graphic.

That being said, I think the not intact D&E will allow Casey standards, Stenberg, etc to be met without need for recourse to the non-intact. The intent language of the statute makes it clear that the doctor has reasonable room to protect the mother and perform abortions . . .we are just excluding one procedure which fails other tests.
Title: Re: Partial Birth Abortion Ban upheld
Post by: leostrauss on April 19, 2007, 09:48:55 AM
Kinda off topic but...cant we call it


"intact dilation and extraction" abortion --the medical term for the type of abortion?

I have no idea why America has embraced right-wing spin doctor terminology.  Partial birth abortion is almost as good as the 'death tax'


just sayin'

Sure, call it what you want. Just be careful not to go over the details of how the procedure works . . . that's the left wing spin - silence about exactly what goes on here. Having read and read over the past two days about these cases, and not having formed any strong opinion about abortion generally, I am now to the point that I can't bear to say that these procedures are ok, unless the mother is definitely going to die without them. I think it more humane to let the baby be born and then allow it to "expire" (is that term, or "fetal demise" as they say in the opinion another example of the right wing spin you mention??? please) on its own. I can't even type the things they do in these procedures. It really is quite graphic.

That being said, I think the not intact D&E will allow Casey standards, Stenberg, etc to be met without need for recourse to the non-intact. The intent language of the statute makes it clear that the doctor has reasonable room to protect the mother and perform abortions . . .we are just excluding one procedure which fails other tests.


Im not sure where I stand on abortion in general.  Just saying that theres a reason right wingers want to call in a "partial birth abortion"  its not like leftwingers are trying to use the term "very important medical procedure that could save women's lives"  they'd like to call it by its correct name which , to me, makes sense.


btw- I do think that this decision was a mistake in that the law in question makes no mention of excepting cases in which a woman's life is in jeopardy.

It also doesn't create a situation in which a woman would die because of lack of options. That's what I was saying about doc intent. The evidence in the record conflicted, but ultimately it was decided that this procedure is never medically necessary to save a woman's life. They are waiting for and have left the door open for an as applied challenge.

Also, let's say I grant you partial birth abortion is right wing spin. Are fetal demise and allowing the non-viable fetus to exper ex-utero left wing spin??? They consistently fail to mention crushing the unborn fetus' head and/or ripping apart . . . I'll give you yours if you grant me mine.

Just remember, yours and not mine got into the official record . ..
Title: Re: Partial Birth Abortion Ban upheld
Post by: leostrauss on April 19, 2007, 09:52:24 AM
F*ing Alito.  >:(

What's the prob with Alito???
Title: Re: Partial Birth Abortion Ban upheld
Post by: leostrauss on April 19, 2007, 10:29:30 AM
F*ing Alito.  >:(

What's the prob with Alito???


Where to begin....


Leo, Im not going to pretend to know the least bit about the medical procedure invovled.  This is an issue that I've largely chosen to keep my nose out of mostly because I think that the govt. shouldn't legislate around it.

Morally, I find abortion wrong- I also find telling women they have to have children they dont want wrong.


I decided long ago that the world is better off when we all don't impose morals on each other.  So I leave it up to the woman invovled; if she thinks abortion is reprehensible then she'll look for other options.  If she thinks she needs to have an abortion- she'll have one.  She may as well get it in a medical clinic and not perform it herself.

I just get nervous when society takes away individual choice.  I don't think this is as cut an dry of an issue as everyone trys to make it.

That's cool man. I didn't mean to be a jerk, or to make you feel the need to explain yourself. I've just been reading this stuff too much lately. Apologies. I agree with the vast majority of what you've said.
Title: Re: Partial Birth Abortion Ban upheld
Post by: SugarJ on April 19, 2007, 10:57:15 AM
F*ing Alito.  >:(

What's the prob with Alito???

Well, had the court been as it were before Alito, with O'Connor, this ban would not have been upheld. It was Alito's vote that sealed the majority. O'Conner would have sided with the dissenters, making the majority again 5-4 but if favor of striking down the ban.

New York Times quote: The most important vote was that of the newest justice, Samuel A. Alito Jr. In another 5-to-4 decision seven years ago, his predecessor, Justice Sandra Day O’Connor, voted to strike down a similar state law. Justice Alito’s vote to uphold the federal law made the difference in the outcome announced Wednesday.
Title: Re: Partial Birth Abortion Ban upheld
Post by: leostrauss on April 19, 2007, 10:59:09 AM
F*ing Alito.  >:(

What's the prob with Alito???

Well, had the court been as it were before Alito, with O'Connor, this ban would not have been upheld. It was Alito's vote that sealed the majority. O'Conner would have sided with the dissenters, making the majority again 5-4 but if favor of striking down the ban.

New York Times quote: The most important vote was that of the newest justice, Samuel A. Alito Jr. In another 5-to-4 decision seven years ago, his predecessor, Justice Sandra Day O’Connor, voted to strike down a similar state law. Justice Alito’s vote to uphold the federal law made the difference in the outcome announced Wednesday.

I think everybody knew how Alito would vote. The question was Kennedy - who wrote 1/3 of the opinion in Casey. I don't know. It's an interesting point.
Title: Re: Partial Birth Abortion Ban upheld
Post by: SugarJ on April 19, 2007, 11:09:44 AM
F*ing Alito.  >:(

What's the prob with Alito???

Well, had the court been as it were before Alito, with O'Connor, this ban would not have been upheld. It was Alito's vote that sealed the majority. O'Conner would have sided with the dissenters, making the majority again 5-4 but if favor of striking down the ban.

New York Times quote: The most important vote was that of the newest justice, Samuel A. Alito Jr. In another 5-to-4 decision seven years ago, his predecessor, Justice Sandra Day O’Connor, voted to strike down a similar state law. Justice Alito’s vote to uphold the federal law made the difference in the outcome announced Wednesday.

I think everybody knew how Alito would vote. The question was Kennedy - who wrote 1/3 of the opinion in Casey. I don't know. It's an interesting point.

I definitely agree. My point was more... I mourn the fact that he was appointed in the first place  ::)
Title: Re: Partial Birth Abortion Ban upheld
Post by: theprocrastinator on April 19, 2007, 11:42:42 AM
F*ing Alito.  >:(

What's the prob with Alito???

Well, had the court been as it were before Alito, with O'Connor, this ban would not have been upheld. It was Alito's vote that sealed the majority. O'Conner would have sided with the dissenters, making the majority again 5-4 but if favor of striking down the ban.

New York Times quote: The most important vote was that of the newest justice, Samuel A. Alito Jr. In another 5-to-4 decision seven years ago, his predecessor, Justice Sandra Day O’Connor, voted to strike down a similar state law. Justice Alito’s vote to uphold the federal law made the difference in the outcome announced Wednesday.

I disagree with that quote. I think there is a strong chance that O'Connor would have come down on the same side as Kennedy, depending entirely on whether or not she accepted the argument that the procedure banned would never be necessary for the mother's health.

In Stenberg she specifically stated that the court would be dealing with an entirely different thing if the statute only banned the D&X procedure. "By restricting their prohibitions to the D&X procedure exclusively, the Kansas, Utah, and Montana statutes avoid a principal defect of the Nebraska law." Granted this language came under the undue burden element, but I think its a strong indication that she viewed these statutes as being substantially different than the Stenberg statute.

She also stated that the reason a health exception was required in Stenberg was because a significant body of medical opinion believed that partial birth abortion (including both D&E and D&X) was much safer than any alternative. There is no way for us to predict how she would have viewed the factual evidence with regards to whether or not D&X would ever be safer/necessary when D&E is still available. Admittedly, she did hint at the fact that the bans on D&X would also need to contain a health exception, but that was before all of the expert testimony in this case.