Partial Birth Abortion Ban upheld

[leostrauss]

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.

[leostrauss]

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

[theprocrastinator]

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.

[leostrauss]

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).

[theprocrastinator]

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.

[leostrauss]

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.

[theprocrastinator]

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.

[leostrauss]

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.

[vercingetorix]

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.

[leostrauss]

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.