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Supreme Court: No Partial Birth Abortions

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The Supreme Court's conservative majority handed anti-abortion forces a major victory Wednesday in a decision that bans a controversial abortion procedure and set the stage for further restrictions.

For the first time since the court established a woman's right to an abortion in 1973, the justices upheld a nationwide ban on a specific abortion method, labeled partial-birth abortion by its opponents.

The 5-4 decision written by Justice Anthony Kennedy said the Partial Birth Abortion Ban Act that Congress passed and President Bush signed into law in 2003 does not violate a woman's constitutional right to an abortion.

The law is constitutional despite not containing an exception that would allow the procedure if needed to preserve a woman's health, Kennedy said. "The law need not give abortion doctors unfettered choice in the course of their medical practice," he wrote in the majority opinion.

Doctors who violate the law face up to two years in federal prison.

Kennedy's opinion, joined by Bush's two appointees, Chief Justice John Roberts and Justice Samuel Alito, was a long-awaited resounding win that abortion opponents expected from the more conservative bench.

The administration defended the law as drawing a bright line between abortion and infanticide.

Reacting to the ruling, Bush said that it affirms the progress his administration has made to defend the "sanctity of life."

"I am pleased that the Supreme Court has upheld a law that prohibits the abhorrent procedure of partial birth abortion," he said. "Today's decision affirms that the Constitution does not stand in the way of the people's representatives enacting laws reflecting the compassion and humanity of America."

Justices Clarence Thomas and Antonin Scalia also were in the majority.

It was the first time the court banned a specific procedure in a case over how?not whether?to perform an abortion.

Abortion rights groups as well as the leading association of obstetricians and gynecologists have said the procedure sometimes is the safest for a woman. They also said that such a ruling could threaten most abortions after 12 weeks of pregnancy, although Kennedy said alternate, more widely used procedures remain legal.

The outcome is likely to spur efforts at the state level to place more restrictions on abortions.

"I applaud the Court for its ruling today, and my hope is that it sets the stage for further progress in the fight to ensure our nation's laws respect the sanctity of unborn human life," said Rep. John Boehner of Ohio, Republican leader in the House of Representatives.

Said Eve Gartner of the Planned Parenthood Federation of America: "This ruling flies in the face of 30 years of Supreme Court precedent and the best interest of women's health and safety. ... This ruling tells women that politicians, not doctors, will make their health care decisions for them." She had argued that point before the justices.

More than 1 million abortions are performed in the United States each year, according to recent statistics. Nearly 90 percent of those occur in the first 12 weeks of pregnancy, and are not affected by Wednesday's ruling. The Guttmacher Institute says 2,200 dilation and extraction procedures?the medical term most often used by doctors?were performed in 2000, the latest figures available.

Six federal courts have said the law that was in focus Wednesday is an impermissible restriction on a woman's constitutional right to an abortion.

The law bans a method of ending a pregnancy, rather than limiting when an abortion can be performed.

"Today's decision is alarming," Justice Ruth Bader Ginsburg wrote in dissent. She said the ruling "refuses to take ... seriously" previous Supreme Court decisions on abortion.

Ginsburg said the latest decision "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."

Ginsburg said that for the first time since the court established a woman's right to an abortion in 1973, "the court blesses a prohibition with no exception safeguarding a woman's health."

She was joined by Justices Stephen Breyer, David Souter and John Paul Stevens.

The procedure at issue involves partially removing the fetus intact from a woman's uterus, then crushing or cutting its skull to complete the abortion.

Abortion opponents say the law will not reduce the number of abortions performed because an alternate method?dismembering the fetus in the uterus?is available and, indeed, much more common.

In 2000, the court with key differences in its membership struck down a state ban on partial-birth abortions. Writing for a 5-4 majority at that time, Justice Breyer said the law imposed an undue burden on a woman's right to make an abortion decision in part because it lacked a health exception.

The Republican-controlled Congress responded in 2003 by passing a federal law that asserted the procedure is gruesome, inhumane and never medically necessary to preserve a woman's health. That statement was designed to overcome the health exception to restrictions that the court has demanded in abortion cases.

But federal judges in California, Nebraska and New York said the law was unconstitutional, and three appellate courts agreed. The Supreme Court accepted appeals from California and Nebraska, setting up Wednesday's ruling.

Kennedy's dissent in 2000 was so strong that few court watchers expected him to take a different view of the current case.

Kennedy acknowledged continuing disagreement about the procedure within the medical community. In the past, courts have cited that uncertainty as a reason to allow the disputed procedure.

"The medical uncertainty over whether the Act's prohibition creates significant health risks provides a sufficient basis to conclude ... that the Act does not impose an undue burden," Kennedy said Wednesday.

While the court upheld the law against a broad attack on its constitutionality, Kennedy said the court could entertain a challenge in which a doctor found it necessary to perform the banned procedure on a patient suffering certain medical complications.

The law allows the procedure to be performed when a woman's life is in jeopardy.

The cases are Gonzales v. Carhart, 05-380, and Gonzales v. Planned Parenthood, 05-1382.
http://www.breitbart.com/article.php?id=D8...;show_article=1
 

bobbob1313

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The administration needs to stop trying to force their morals down everyone's throats.

Either way, Roe v. Wade will never be overturned.
 

The Fan

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The administration needs to stop trying to force their morals down everyone's throats.

Either way, Roe v. Wade will never be overturned.

Planned Parenthood v. Casey partially overruled it already. They are slowly changing alot of the concepts and fundamentals of the Wade holding.
 

prinmemito

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The administration needs to stop trying to force their morals down everyone's throats.

Either way, Roe v. Wade will never be overturned.

Planned Parenthood v. Casey partially overruled it already.

It did? Um, you're wrong.
 

The Fan

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The administration needs to stop trying to force their morals down everyone's throats.

Either way, Roe v. Wade will never be overturned.

Planned Parenthood v. Casey partially overruled it already.

It did? Um, you're wrong.

Oh really? I very much doubt that I am, considering the Court in Casey overturned Roe's holding on abortion's status as a fundamental right, the state's almost complete inability to regulate first trimester abortions, and really overruled and changed the whole trimester framework of Roe allowing for the states to restrict abortions as long as they do not place "undue burdens" on the woman's right to choose, which is definitely different and more strict than the holding in Roe. But yeah, I guess I am wrong. :whistle
 

prinmemito

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That opinion did not have a majority opinion, just a majority conclusion. It elaborated a new standard, " a recognition of a woman's right to choose to have an abortion before fetal viability...without undue interference from the State."

Roe has not been overturned yet.


Direct quotes:

"After considering the fundamental constitutional questions resolved by Roe, principles of institutional integrity, and the rule of stare decisis, we are led to conclude this: the essential holding of Roe v. Wade should be retained and once again reaffirmed."

Another quote:

"It must be stated at the outset and with clarity that Roe's essential holding, the holding we reaffirm, has three parts. First is a recognition of the right of the woman to choose to have an abortion before viability and to obtain it without undue interference from the State. Before viability, the State's interests are not strong enough to support a prohibition of abortion or the imposition of a substantial obstacle to the woman's effective right to elect the procedure. Second is a confirmation of the State's power to restrict abortions after fetal viability, if the law contains exceptions for pregnancies which endanger the woman's life or health. And third is the principle that the State has legitimate interests from the outset of the pregnancy in protecting the health of the woman and the life of the fetus that may become a child. These principles do not contradict one another; and we adhere to each."

Another:

"While we appreciate the weight of the arguments made on behalf of the State in the cases before us, arguments which in their ultimate formulation conclude that Roe should be overruled, the reservations any of us may have in reaffirming the central holding of Roe are outweighed by the explication of individual liberty we have given combined with the force of stare decisis."

And another one:

"From what we have said so far it follows that it is a constitutional liberty of the woman to have some freedom to terminate her pregnancy. We conclude that the basic decision in Roe was based on a constitutional analysis which we cannot now repudiate. The woman's liberty is not so unlimited, however, that from the outset the State cannot show its concern for the life of the unborn, and at a later point in fetal development the State's interest in life has sufficient force so that the right of the woman to terminate the pregnancy can be restricted.

That brings us, of course, to the point where much criticism has been directed at Roe, a criticism that always inheres when the Court draws a specific rule from what in the Constitution is but a general standard. We conclude, however, that the urgent claims of the woman to retain the ultimate control over her destiny and her body, claims implicit in the meaning of liberty, require us to perform that function. Liberty must not be extinguished for want of a line that is clear. And it falls to us to give some real substance to the woman's liberty to determine whether to carry her pregnancy to full term.

We conclude the line should be drawn at viability, so that before that time the woman has a right to choose to terminate her pregnancy. We adhere to this principle for two reasons. First, as we have said, is the doctrine of stare decisis. The second reason is that the concept of viability, as we noted in Roe, is the time at which there is a realistic possibility of maintaining and nourishing a life outside the womb, so that the independent existence of the second life can in reason and all fairness be the object of state protection that now overrides the rights of the woman..."

Basically, the case you mention limits Roe's holding to pregnancy before viability. It certainly limits Roe, but does not overturn it.
 

The Fan

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That opinion did not have a majority opinion, just a majority conclusion. It elaborated a new standard, " a recognition of a woman's right to choose to have an abortion before fetal viability...without undue interference from the State."

Roe has not been overturned yet.

Reading comprehension is paramount.


Planned Parenthood v. Casey partially overruled it already.

It did? Um, you're wrong.
I never said it was fully overruled. I said it partially overruled it, and I have listed where. By the way, the majority opinion/conclusion argument is ridiculous. The bottom line is that the case is the current governing one for several aspects of abortion, namely not making it a fundamental right, which explicitly overruled Roe.

It's obvious you are not certain what you are talking about as far as Constitutional Law. Are you trying to go off of one college course you took, because I definitely think you are making a baseless argument that the Casey decision did not partially overrule Roe. It's really not arguable that Casey did not overrule Roe in some aspects (hence partially).
 

prinmemito

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Sorry, I didn't catch the word "partially." Oops. Working too hard here.

I am not going off one college course. I am an attorney at a major international firm, and went to one of the top 5 law schools.
 

The Fan

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Sorry, I didn't catch the word "partially." Oops. Working too hard here.

I am not going off on one college course. I am an attorney at a major international firm, and went to one of the top 5 law schools.

No big deal. :thumbup
 

prinmemito

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I read the case quickly just now, and I didn't find that it "explicitly" held that the right to abortion is not a fundamental right. Can you point it out?

Sorry, I didn't catch the word "partially." Oops. Working too hard here.

I am not going off on one college course. I am an attorney at a major international firm, and went to one of the top 5 law schools.

No big deal. :thumbup

Cool. :thumbup
 

The Fan

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I read the case quickly just now, and I didn't find that it "explicitly" held that the right to abortion is not a fundamental right. Can you point it out?

Sorry, I didn't catch the word "partially." Oops. Working too hard here.

I am not going off on one college course. I am an attorney at a major international firm, and went to one of the top 5 law schools.

No big deal. :thumbup

Cool. :thumbup

It wasn't explicitly said in the decision, but they didn't use strict scrutiny to uphold the right to abortion, which is needed for any right that is fundamental. Instead, they used the "undue burden" test, meaning that restrictions on abortions no longer need to be strictly scrutinized (which obviously would not make it a fundamental right anymore).
 

prinmemito

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Gotcha. I think the different levels of scrutiny are overhyped. They don't mean much.
 

The Fan

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Gotcha. I think the different levels of scrutiny are overhyped. They don't mean much.

It's pretty cut and dry as far as fundamental rights and scrutiny though. Not strict = not fundamental.
 

TSwift25

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Good. Partial birth abortion is murder.

Disgusting that it was even allowed to be practiced, electively, for 5+ years.
 

Boog Sciambi

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Good. Partial birth abortion is murder.

Disgusting that it was even allowed to be practiced, electively, for 5+ years.

To those that argue that its not, or just in general, if some idiot on the road hits and kills a pregnant mother why are they charged with 2 counts of vehicular manslaughter?
 

The Fan

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Good. Partial birth abortion is murder.

Disgusting that it was even allowed to be practiced, electively, for 5+ years.

To those that argue that its not, or just in general, if some idiot on the road hits and kills a pregnant mother why are they charged with 2 counts of vehicular manslaughter?

Well, part of the reason is a moral argument for punishment purposes.

Theoretically, If the law was not the way it is set up now, a person could attack a pregnant woman whose fetus was not viable, kill the fetus and then claim he should only be charged with assault & battery instead of manslaughter or homicide (since viability would mean what is and is not a human being in this sense).
 

MVPosey

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I personally think abortion should be legal (although it's an issue that I don't really care much about so it could go either way), but there is no way to justify partial birth abortion
even the pro-choice people, the only reason why they're fighting a ban on that is so that the pro-life people would have to fight to stop partial birth abortions before stopping other kinds
 

prinmemito

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Gotcha. I think the different levels of scrutiny are overhyped. They don't mean much.

It's pretty cut and dry as far as fundamental rights and scrutiny though. Not strict = not fundamental.

True, but I still don't think Roe has been overturned. The basic holding has been chipped away. And the Court did not say anything about overturning Roe. In fact, it specifically upheld the basic holding of Roe prior to viability.

No matter, if a state passed a law banning abortion completely it couldn't rely on Casey for the proposition that it could do so. I quoted part of the Court's decision above and it explicitly said that the there is a constitutional liberty for a woman to terminate her pregnancy before viability. In other words, it's not a fundamental right after viability.

Although the Court uses the term "undue influence" it appears as though it is using a strict scrutiny standard. It is saying that yes the woman has the right to an abortion, but that the right is tempered by the state's interest in the life of the fetus post-viability. I don't think it uses the word "compelling interest" anywhere, but let's be realistic, the state's interest in the life of the fetus post-viability would be considered "compelling" by anyone.

Would you argue that the state does not have a "compelling interest" in the life of a viable fetus?

I wouldn't pay so much attention to the fact that the Court used the term "undue influence." I personally think that the Court simply held that the state has a compelling interest in protecting the life of a viable fetus. As a result, the state may place restrictions on how and when a woman can choose to terminate her pregnancy.

And, in fact, the Court specifically held that "a State may not prohibit any woman from making the ultimate decision to terminate her pregnancy before viability." What does this tell you? It certainly sounds even stronger than strict scrutiny to me because it is saying that the state's interest in the life of a fetus whose life is not yet viable can NEVER ALWAYSoutweigh the right of a woman to have an abortion.


In any case, I think Roe will be overturned shortly.
 

The Fan

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I agree with most of what you said, have a different opinion on a little. But doesn't matter either way, you know your stuff. I'm going to leave this thread alone because, to me, it's obvious we know what we are talking about, but I don't think anyone else has any clue about what we are saying.
 

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