Partial Birth Abortion Ban upheld

[vercingetorix]

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.

[skeeball]

I'd say in a perfect world we wouldn't even need to be having this discussion.

[leostrauss]

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.

[deedeeleigh]

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.

[leostrauss]

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

[leostrauss]

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.

[theprocrastinator]

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.

[vercingetorix]

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.  

[leostrauss]

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).

[theprocrastinator]

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.