''We are reluctant to invalidate an entire statute,'' 9th U.S. Circuit Court of Appeals Judge Stephen Reinhardt wrote. ''However, after considering all of the obstacles to our devising a narrower remedy, we conclude that such is our obligation.''...
Chief Judge John M. Walker, a relative of former President George Herbert Walker Bush who serves in the 2nd U.S. Circuit Court of Appeals, said the application of the statue ''might deny some unproven number of women a marginal health benefit.''...
The 2nd Circuit ruling Tuesday was marked by an unusually sharp dissent by Judge Chester J. Straub, who said he believed Congress' determination that the procedure was never medically necessary to protect a women's health was well founded and supported by a lower court ruling.
''Allowing a physician to destroy a child as long as one toe remains within the mother would place society on the path towards condoning infanticide,'' he said....
''Even though the supporters of this law purported to be banning one particular abortion procedure, the law as the court found would in fact chill doctors from performing virtually any second trimester abortion,'' said Eve Gartner, senior staff attorney for Planned Parenthood and lead counsel in the 9th Circuit case.
February 1, 2006
Two abortion decisions in one day.
Yesterday, both the 9th Circuit and the 2d Circuit Courts of Appeals issued decisions holding the federal partial-birth abortion ban unconstitutional. The statute lacks a health exception.
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Not a doctor, but I think the reason "a group of lawyers" can make that determination (and indeed anyone with half a brain) is that the procedure involves delivering 2/3 of the baby, feet first, and then inserting a needle into its brain and scrambling things around until the child is dead.
It's never medically necessary (only serves to make the killing a legally protected abortion and not a prosecutable infanticide) because the trauma of birth has already taken place.
There are reports from assisting nurses of the head slipping out a little too easily and being partially re-inserted so the "abortion" can take place.
Does that help, David?
For reasons given at some length here, I think the Ninth Circuit made the right ruling, but for completely the wrong reasons. The issues that the Ninth Circuit raises are irrelevant until it is established that Congress had the Constitutional authority to enact the statute in the first place; believing that it does not, I agree that the Federal PBA, 117 Stat. 1201, is unconstitutional.
teddy -
"medical judgment may be exercised in the light of all factors -- physical, emotional, psychological, familial, and the woman’s age -- relevant to the well being of the patient. All these factors may relate to health." Doe v. Bolton, 410 U.S. 179, 192 (1973).
SOCTUS has 1) Demanded a health exception and 2) Defined "health" so broadly as to be meaningless. That's why we're at an impasse on discussion of abortion in America.
And FYI - the AMA gave its approval to the Partial Birth Abortion Ban Act of 1997 (with exception to save a woman's life). But what would a group of doctors know?
You know, I believe abortion should be legal and safe. But I can't stomach the "partial birth" abortion. It seems to be unecessary and downright barbaric. I can't see how it would be needed to save a life. As Shadycharacter pointed out - the trauma of birth has already occurred for this proceedure to be used.
I know that this position won't please the absolutists out there... Oh well.
When all of you who state with authority that "partial-birth abortion" is "never" medically necessary, you might first (1) go to medical school and (2) do a residency in obstetrics, before you start making medical judgments. Let's make a deal: let's let doctors be doctors and you can keep posting ignorant, uninformed opinions on a blog.
Dcwilly,
Actually, there are plenty of board certified doctors on record against the procedure. Also Dr. Koop, former Surgeon General.
Aside from that, your comment shows a fundamental misunderstanding of what freedom of speech is. One does not have to be a board certified expert in any given subject to hold a valid opinion on that subject. But to hold you to your own standard, please provide your board certified credentials to post your opinion on this - or any - matter.
Now, if someone could provide an example of a case where a valid medical emergency necessitated a partial birth abortion, I am willing to consider amending my opinion. However, I watched helplessly as my wife and youngest boy both almost died during delivery. I saw the medical team move heaven and earth to save them - which they did. It took my wife a couple of days to get out of intensive care so she could even hold our baby. So it would take a pretty strong example for me to change my opinion.
Teddy,
You are using terms like "health" and "life" interchangably. Did you read my comment above on the Doe health exception?
No one is opposed to a medical exception necessary to save a mother's life. The problem is the court's definition of "health" which is so vague as to be meaningless.
Do you really believe that partially delivering a baby, puncturing its skull, and sucking its brains out while alive and conscious is nobody's business? In how many cases is this even remotely necessary? Are there any restrictions on abortion which you would accept?
Why are "politics" in the delivery room and lawyers involved? Because there are women willing to commit infanticide for no medical reason, groups like Planned Parenthood who encourage them, and doctors willing to profit by it.
Gaius Arbo:
C. Everett Koop was NOT an obstetrician, and the non-partisan American College of Obstetrics and Gyencology (which is full of them) opposes "Partial-birth abortion" bans because they don't want their hands tied by politicians who don't know what they are talking about. As to your own personal near tragedy, imagine your doctor not being able to perform some procedure that in his or her trained opinion was necessary and that, G-d forbid, your son or wife died as a result. Why aren't other people, who likely have entirely distinguishable medical problems and needs from your wife and son, entitled to a doctor who (like yours) was able to exercise his/her discretion about what is necessary to save a life. I can assure you, medically trained or not, what happened to your wife and son does not present the same diagnosis and treatment problems as all women who have problems during child birth.
Teddy,
I'm sorry if I misread your earlier posts when you talked about both health and life.
Ann's post was based on the NYT article, which I read. Do you have a link to the 9th circuit opinion?
I don't understand your point. Earlier, you asked if there couldn't be a reasonable exception for women's health. I basically agree with you. The problem is that the SCOTUS won't allow that. In fact, that's essentially what SOCTUS struck down in Doe, instead demanding an exception for any possible health issue. How can any reasonable restrictions on abortion then be possible?
DCWilly -
Once again, nobody is opposing exceptions to save the life of the mother. What the courts want is an open-ended "health" exception that can relate to anything, including mental anguish. And we're not talking about limbs or organs, but babies.
Put the argument another way. We believe wild animals should be protected and we shouldn't kill them for no reason. But if a wild bear charges you, you have a right to defend yourelf. So there are legitimate exceptions to "Don't kill bears.
The partial-birth abortion supporters are coming from the other direction. "You can't legislate my right to kill bears! I have to be free to kill bears whenever I decide it's in my best interests. They're on my property; I can do what I want to them."
But because we have a predisposition to favor life, couldn't we outlaw bear-killing with the exception of when it's necessary for human safety?
That's what this bill is trying to do, but the "Absolutely no limits on the right to kill even full-grown babies" lobby and their allies in the courts won't hear of it.
Dcwilly,
Reread what I wrote. I did not state Koop was an obstetrician. Just that he was Surgeon General.
Please cite one real example, not some nebulous what-if. Please note that my example was real, even if personal in nature.
My own education and training as an engineer make me tend to be analytical and fact based. I have stated what I know to be fact (personal experience) and what I believe from descriptions of the procedure and the logical failure of the "mother's health" argument in light of the fact that the birth process has already occured.
I have also pretty clearly stated that I am pro-abortion. Just so we're clear here, I am in favor of it remaining legal and safe, ok?
I am just not pro-partial-birth abortion. (But again - I am willing to reconsider that opinion if presented with evidence that the procedure is needed for reason's of the mother's health.)
Verification "qgbzuup" - which sounds like it should be a slang greeting for something....
Marghlar-
In order to get what you want, you would have to strike down a whole lot of Congressional legislation, and overturn a century worth of SCOTUS precedent. I don't think you've made the case for that, here or at the page you linked us to.
Whether it is the present state of Constitutional jurisprudence is one thing; whether it is what the Constitution requires, quite another. The flat reality is that the Court's modern (that is to say, 20th Century) commerce clause jurisprudence has become absurdly detatched from the commerce clause, turning it into a blank cheque for Congress to enact laws of precisely this nature: anything it wants. By the modern court's definition, you are engaging in interstate commerce right now, by reading a blog with adverts hosted on a server in a different state to yours.
The lonely, singular and oblique reference in the statute to the commerce clause, frankly, fails dismally in the mustard-cutting stakes. I suppose the argument goes that you have to be born to participate in interstate commerce; I have a similar idea: we should pass a law regulating handgun ownership because if you own a handgun it has to have been transported across state lines at some point. Or, perhaps Congress can prohibit my growing potatoes in my back yard, since that might affect my participation in interstate commerce?
But wait a minute, we benighted FedSoc types don't like laws like that. How we scorned the expansion of the commerce clause into a blank cheque; "if we were to accept the Government's arguments, we are hard pressed to posit any activity by an individual that Congress is without power to regulate." Did we not cheer when Lopez and Morrison began to chip away at what Justice Thomas called "this rootless and malleable standard . . . [that] encourage[s] the Federal Government to persist in its view that the Commerce Clause has virtually no limits."
I felt no need to expand in my previous post on what has already been ably made clear; refer to the opinions of Justices Thomas and Rehnquist in U.S. v. Lopez and U.S. v. Morrison.
Seven Machos -
Have you read Roe? The state has a compelling interest in unborn human life, the moreso as the child develops. Your examples are irrelevant, and I think you know it - unless you believe that unborn human life is equivalent to tonsils. In which case, Planned Parenthood is hiring.
Teddy,
Thanks for the links. I share your hopes.
Seven Machos,
Sorry for my misunderstanding - one of the drawbacks of electronic communication. There are plenty of people who sincerely make the arguments you made. Thanks for clarifying, and for your kind words.
I don't know if anyone is interested, but hydrocephalus is one reason D & X is used for the health of the mother.
Wikipedia's entry for hydrocephalus doesn't mention anything about it, and a good search for hydrocephalus + birth problems yields only information about hydrocephalus as a birth defect, not as a maternal health issue. Could you provide a link (obviously a credible link, that is, not NARAL or its ilk) that provides information on hydrocephalus as a threat to maternal health during birth?
This doesn't change my view on the issue at hand, by the way; the hydrocephalus issue (like other threats to maternal health) should be weighed against the child's life on a state-by-state basis.
"odds that you're basing that conclusion on a book by Richard North Patterson, Protect and Defend. Not that there is anything wrong with that..."
I would think that the first thing that would be wrong with that is that "Protect & Defend" is fiction. So I'm certain that this isn't the source of Geoduck's assertion.
Does anyone have a link to legislative hearings regarding late term abortions? I'm curious about the evidence or first-person testimony that late-term abortions to this extreme actually take place in clinics/hospitals across the country.
It seems to me that both these cases could have been disposed of perfunctorily, by simply noting the requirements set forth in Stenberg. The federal act doesn't meet those requirements, so that's the end of the story. If SCOTUS wants to revisit Stenberg, they can do so (I don't believe they should, but they can), but at the circuit level, it seems to me Stenberg is decisive of the case.
Geoduck,
Ah, okay. According to the D&E article, it suggests that it's performed when the child has hydrocephalus (which is consistent with the other information); the threat to maternal health is caused by the expanded skull of the child. But of course, that begs the question: why would that be treated with an abortion rather than caesarian section?
Adriana,
I have to go off to other duties, but here are a few links:
ACOG's asserts that "An intact D&X may be the best or most appropriatc procedure ... to save the life or preserve the health of the mother." A group of doctors formed specifically to address partial-birth abortion (including many fellows of ACOG) challenged ACOG's approval of PBA on medical grounds.
An abortion rights leader admitted he lied when he said the procedure was rare and only performed on women in physical danger or with damaged fetuses. Thousands are performed each year. "In the vast majority of cases, the procedure is performed on a healthy mother with a healthy fetus."
ultimately, this boils down to whether a person has a visceral revulsion for infanticide or not.
It's clear that many abortion supporters, as proto-Peter Singers, do not view infanticide as equivalent of murder.
Could somebody please do a quick explanation of how to insert links in these comments?
I'm not sure people are picturing the procedure properly. Linked is as tasteful-as-possible diagram of the procedure that is nonetheless pretty gruesome:
http://www.nrlc.org/abortion/pba/PBA_Images/PBA_Images_Heathers_Place.htm
Geoduck:
"I don't know. My guess is that the baby will die after birth, and D and X is safer then a Cesaerean. Or if the fetus is already dead, I assume that a Cesarean is more physically traumatic then a D and X."
This would be one of those situations where my normative preference would permit an abortion, then, perhaps. I mean, I should clarify that by saying, if the baby is dead already, that's not an abortion; I have no objection to the D&E process if it's used to vacate an already-dead foetus. But I also think that if the attending doctor and one independent doctor will certify that the baby has what will be an imminently fatal congenital defects - and a fortiori if giving birth to the child will cause severe physical trauma to the mother - then abortion is permissable in those circumstances. But that's just my point of view, and I reach it because if the child is very likely to die shortly after birth and the birth (by whichever means) poses a threat to the life and health of the mother, the moral calculus changes. That others may feel differently, I think is evidence of the wisdom - and the constitutional necessity - of avoiding a Federal straightjacket on this incredibly difficult and profoundly important moral choice.
Regarding nunzio's argument, let me rephrase Nunzio's point into terms that better fits with Lopez: how many gun crimes are there in a year? If there aren't that many and they don't cost that much I don't see how the economic effect amounts to enough to substantially affect interstate commerce. Also, are the guns used of a specific kind for this type of crime or are they used for other purposes? And how many of these guns are sold in interstate commerce a year?
I'm just not really sure that the "substantially affects" test is relevant to commerce clause jurisprudence; I mean, you look at Wickard, and its obvious that in that case, the production could grow to a scale where it started to have an effect on interstate commerce. But I'm not sure that something that isn't even infrastate commerce can rise to a level where it falls due for congressional regulation just because of the increased incidence.
Congress does not have plenary power. It was specifically denied plenary power. That structural reality of the Constitution should inform our understanding of the scope of Congressional power, and when we're presented with an argument that would effectively GIVE the Congress plenary power, we need to think very hard about whether that argument is really sufficiently compelling an exposition of the original meaning of the commerce clause as to facilitate a construction which goes against every other structural aspect of the document. The original intent does not govern, but when confronted with a choice between the clear purpose of the document and a theory of how broad a power is based on a vague interpretation of the text, we should give great deference to the structure when in doubt about the text.
Cat,
I think this is where the idea of a culture of life is important. The presumption should always be that ALL efforts have to be taken to save the life of the mother and the child. The obvious comparison is siamese twins: sometimes it becomes necessary to separate them, and sometimes that's going to happen at the probable cost of killing one or the other - but they try to save both.
I'm not a doctor, but it stands to reason that there are certain congenital defects which are so severe that the child will be dead within weeks or months of birth. This fact alone doesn't necessarily amount to much, but it does change the calculus. If the defect is likely to cause complications during birth, that too changes the calculus, and if c-section isn't an option (as it isn't, for legitimate medical reasons, in the case of some women, as I understand it), that feeds into the calculus as well.
A doctor, in my view, should always do the utmost to save both the mother and the child, acting on the assumption that both are human lives which should be accorded dignity and respect. Sometimes the situation may arise, however, when the calculus says that this child is very likely to die soon after birth if not before, and that continuing the pregancy poses a dire and serious threat to the life or health of the woman, and when that happens, in those limited circumstances, and presuming a climate has been fostered wherein abortion is treated as killing a child, an option of the deepest gravity, I can accept abortion as a legitimate option.
I may, in the end, though, prove a faint-hearted pro-lifer, since I would suggest that the doctor should always err on the side of the mother's life. I'm not pro-life as a statement that the mother has less worth than our pro-choice friends think, but that the child has MORE worth than they think.
Shady - Re: html tags, if you're still here...
Here's a site that gives examples and explains what it should look like. What you're looking for is the Anchor tag (the one with A HREF="www.example.com").
Seven Machos: I haven't read all the comments here, but I think way back someone got confused and wanted to say that you have a constitutional right to commit suicide ("drink Drano") and someone else wanted to say you don't have a constitutional right to commit suicide (probably correct under the case law) and said, incorrectly, that it's unconstitutional to commit suicide. To say you don't have a constitutional right to do something is, of course, not the same as to say it's unconstitutional to do it. When we're talking about individuals who are not acting as government officials, it's pretty hard for them to violate the constitution. Most of the wrongs individuals do, even the worst things, if they are even illegal, are illegal as a matter of statutory or common law, which is not constitutional law. Thus, murder, for example, violates statutes. It's not unconstitutional.
Thank you for those links - not very helpful though. It's strange that public evidence of these kinds of late-term abortions is woefully lacking.
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