Supreme Court to Decide on Partial Birth Abortion Ban

[Frodo]

Supreme Court Plunges Into Abortion Debate With New Case

By THE ASSOCIATED PRESS
Published: February 21, 2006
Filed at 10:39 a.m. ET
    
WASHINGTON (AP) -- The Supreme Court said Tuesday it will consider the constitutionality of banning a type of late-term abortion, teeing up a contentious issue for a newly-constituted court already in a state of flux over privacy rights.

The Bush administration has pressed the high court to reinstate the federal law, passed in 2003 but never put in effect because it was struck down by judges in California, Nebraska and New York.

The outcome will likely rest with the two men that President Bush has recently installed on the court. Justices had been split 5-4 in 2000 in striking down a state law, barring what critics call partial birth abortion because it lacked an exception to protect the health of the mother.

But Justice Sandra Day O'Connor, who was the tie-breaking vote, retired late last month and was replaced by Samuel Alito. Abortion had been a major focus in the fight over Alito's nomination because justices serve for life and he will surely help shape the court on abortion and other issues for the next generation.

Alito, in his rulings on the 3rd U.S. Circuit Court of Appeals in Philadelphia, has been more willing than O'Connor, the first woman justice, to allow restrictions on abortions, which were legalized in the Roe v. Wade decision in 1973.

source

[MODU]

Good.  This one we should win.  Babies that are born premature have shown to be "alive," even though they need some medical care to ensure that they live during their first few weeks.  Late-term abortion is murder, no matter how you define "life."  They have the right to life like anyone else.

[A18]

Is this pure "substantive due process," or is there a Commerce Clause element as well?

[Emsworth]

The law is clearly unconstitutional, not because abortion is a constitutional right, but because the federal government clearly has no authority over the issue. The states are entitled to regulate abortion however they please.

Is this pure "substantive due process," or is there a Commerce Clause element as well?

I am assuming that this is a due process case. Organizations like Planned Parenthood do not believe in federalism.

[MODU]

The law is clearly unconstitutional, not because abortion is a constitutional right, but because the federal government clearly has no authority over the issue. The states are entitled to regulate abortion however they please.

Unfortunately, Abortion will never make it back down to the state level, so we might as well work from the basis that it is federal issue and go from there.

[A18]

The law is clearly unconstitutional, not because abortion is a constitutional right, but because the federal government clearly has no authority over the issue. The states are entitled to regulate abortion however they please.

Unfortunately, Abortion will never make it back down to the state level, so we might as well work from the basis that it is federal issue and go from there.

Absurd. The ban clearly exceeds congressional power under the Commerce Clause, and should therefore be struck down.

And if this ban can be upheld at the federal level, there's no reason it couldn't at the state level.

[MODU]

The law is clearly unconstitutional, not because abortion is a constitutional right, but because the federal government clearly has no authority over the issue. The states are entitled to regulate abortion however they please.

Unfortunately, Abortion will never make it back down to the state level, so we might as well work from the basis that it is federal issue and go from there.

Absurd. The ban clearly exceeds congressional power under the Commerce Clause, and should therefore be struck down.

And if this ban can be upheld at the federal level, there's no reason it couldn't at the state level.

As I said, Abortion will never make it back to being a state issue, because your politicians won't let it.  (Yet another reason why Republicans and Democrats need to lose their grip of power.)   Even striking Roe-v-Wade won't remove it from the federal level.  So, we have to do the next best thing, and protect babies who are in late term which have shown can survive outside of their mother (one of the requirements the pro-death crowd argues on).

[A18]

As I said, Abortion will never make it back to being a state issue, because your politicians won't let it.  (Yet another reason why Republicans and Democrats need to lose their grip of power.)   Even striking Roe-v-Wade won't remove it from the federal level.  So, we have to do the next best thing, and protect babies who are in late term which have shown can survive outside of their mother (one of the requirements the pro-death crowd argues on).

Uh, the point is that the Supreme Court should strike down federal attempts to regulate abortion.

[© tweed]

As I said, Abortion will never make it back to being a state issue, because your politicians won't let it.  (Yet another reason why Republicans and Democrats need to lose their grip of power.)   Even striking Roe-v-Wade won't remove it from the federal level.  So, we have to do the next best thing, and protect babies who are in late term which have shown can survive outside of their mother (one of the requirements the pro-death crowd argues on).

Uh, the point is that the Supreme Court should strike down federal attempts to regulate abortion.

But it won't.  The court will probably rule 6-3 or 7-2 in favor of upholding the ban, with only Ginsburg, Breyer, and maybe Souter dissenting.

[A18]

It should.

Under due process, it will be upheld 5-4 at best.

[© tweed]

It should.

Under due process, it will be upheld 5-4 at best.

Who are your four dissenters?  Ginsburg/Breyer/Souter/Stevens?

[minionofmidas]

To sum this thread up, MODU cares about preventing late-term abortions. Philip cares about crippling government. What else is non-new?

[A18]

It should.

Under due process, it will be upheld 5-4 at best.

Who are your four dissenters?  Ginsburg/Breyer/Souter/Stevens?

They, along with O'Connor, voted to strike down a similar ban in Stenberg v. Carhart. I see no reason why they would change their votes this time.

The question marks are Roberts and Alito.

[Emsworth]

No matter how desirable a federal partial birth abortion ban might seem, it is clearly unconstitutional. I really cannot see how killing a fetus constitutes "commerce ... among the states." Even under modern jurisprudence, this law should not be sustained.

So, we have to do the next best thing, and protect babies who are in late term which have shown can survive outside of their mother (one of the requirements the pro-death crowd argues on).

Why should courts care about protecting fetuses?

[David S]

The law is clearly unconstitutional, not because abortion is a constitutional right, but because the federal government clearly has no authority over the issue. The states are entitled to regulate abortion however they please.

I think there is a 14th amendment issue in the case of late term abortions.
"No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws."
Once the fetus passes through the birth canal and is born then it is definitely a person and subject to the same protection of the law that all other persons are. But is the same fetus not a person a few hours earlier while it is still in the womb? If the fetus is considered to be a person then it must receive the same protection of the law that all persons have.

In my opinion that would be the constitutional basis for the feds being involved in late term abortions.

[A18]

The Equal Protection Clause is most properly understood as a simple prohibition on racial discrimination.

But even in modern Supreme Court jurisprudence, and even if the fetus counts as a 'person' (very questionable), the law would only have to pass rational basis scrutiny, which is relatively easy to do.

[David S]

The Equal Protection Clause is most properly understood as a simple prohibition on racial discrimination.

But even in modern Supreme Court jurisprudence, and even if the fetus counts as a 'person' (very questionable), the law would only have to pass rational basis scrutiny, which is relatively easy to do.

It hinges on whether a fetus is a "person" or not. At the beginning of the birth cycle there is only a fertilized egg. It has no arms, no legs, no central nervous system, no ears, no eyes nor any of the components which make up a human being. That, in my opinion, is not a person. But at the other end of the process you have a fully formed baby ready to be born and separated from life only by passage through the birth canal. I think that could very well be considered a person.

[A18]

It hinges on whether a fetus is a "person" or not.

No, it doesn't, for the reasons I just gave.

[Emsworth]

But is the same fetus not a person a few hours earlier while it is still in the womb?

Yes. The theory that a fetus is a "person" prior to birth is a dubious one. "Person" is a legal term that has nothing to do with religion, science, or ethics. The term "person" has long been understood to exclude fetuses; thus, at the common law, aborting a fetus was not murder, but at most a misdemeanor.

But even if a fetus is a person, it does not follow that states must forbid abortion. Every law, in some sense or another, classifies individuals. That does not mean that every law is unconstitutional. As A18 points out, only one form of discrimination is prohibited by the equal protection clause: discrimination on the basis of race.

You must be logged in to read this quote.

You are essentially arguing that fetuses must be accorded the same rights as adults. But this position is not tenable. Under this theory, children would be allowed to marry, make contracts, drink, smoke, and so forth, because they are supposedly "subject to the same protection of the law that all other persons are."

[MODU]

You are essentially arguing that fetuses must be accorded the same rights as adults. But this position is not tenable. Under this theory, children would be allowed to marry, make contracts, drink, smoke, and so forth, because they are supposedly "subject to the same protection of the law that all other persons are."

Not at all.  He/we are arguing that a developed fetus deserves the same protection rights that any living person would have . . . the right to life.  Again, going back to what was said earlier, if a baby born at 7 months can live and grow up to be a normal person, how can we deny a "fetus" at 8 months the same future?  Abortions after 6 months, unless medical conditions arise which will put the mother at risk, should be illegal. 

[A18]

Not at all.  He/we are arguing that a developed fetus deserves the same protection rights that any living person would have . . . the right to life.  Again, going back to what was said earlier, if a baby born at 7 months can live and grow up to be a normal person, how can we deny a "fetus" at 8 months the same future?  Abortions after 6 months, unless medical conditions arise which will put the mother at risk, should be illegal. 

You can always identify a similarity between two people, and then point out that they aren't being treated the same way in some respect.

[MODU]

Not at all.  He/we are arguing that a developed fetus deserves the same protection rights that any living person would have . . . the right to life.  Again, going back to what was said earlier, if a baby born at 7 months can live and grow up to be a normal person, how can we deny a "fetus" at 8 months the same future?  Abortions after 6 months, unless medical conditions arise which will put the mother at risk, should be illegal. 

You can always identify a similarity between two people, and then point out that they aren't being treated the same way in some respect.

Of course.  However, this is something that is rarely discussed in the abortion debate. 

[Sam Spade]

Frankly, I wish the Supreme Court would just strike down Stenberg, so that the states can make their own partial-birth ban laws.

But this is probably being too wishful on my part, so I would hope they would simply uphold the ban, as long as abortion is going to continue to be viewed as a federal issue.

The practice is simply disgusting, and should be banned anyway by any common sense person.

[David S]

But is the same fetus not a person a few hours earlier while it is still in the womb?

Yes. The theory that a fetus is a "person" prior to birth is a dubious one. "Person" is a legal term that has nothing to do with religion, science, or ethics. The term "person" has long been understood to exclude fetuses; thus, at the common law, aborting a fetus was not murder, but at most a misdemeanor.

But even if a fetus is a person, it does not follow that states must forbid abortion. Every law, in some sense or another, classifies individuals. That does not mean that every law is unconstitutional. As A18 points out, only one form of discrimination is prohibited by the equal protection clause: discrimination on the basis of race.

You must be logged in to read this quote.

You are essentially arguing that fetuses must be accorded the same rights as adults. But this position is not tenable. Under this theory, children would be allowed to marry, make contracts, drink, smoke, and so forth, because they are supposedly "subject to the same protection of the law that all other persons are."

I'm not arguing that. According to your profile you are 17, so you can't do any of those things; drink, smoke, etc. either, but that doesn't mean that its legal for someone to murder you. You still have the protection of the law.

When there is a question about what the constitution means the first step should be to read it. It says the states may not deny equal protection of the law to any person. It says nothing about preventing racism, although that may be the motive behind it.

[A18]

Not at all.  He/we are arguing that a developed fetus deserves the same protection rights that any living person would have . . . the right to life.  Again, going back to what was said earlier, if a baby born at 7 months can live and grow up to be a normal person, how can we deny a "fetus" at 8 months the same future?  Abortions after 6 months, unless medical conditions arise which will put the mother at risk, should be illegal. 

You can always identify a similarity between two people, and then point out that they aren't being treated the same way in some respect.

Of course.  However, this is something that is rarely discussed in the abortion debate. 

My point is that it does not establish an Equal Protection violation.