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.
''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.


Dave said...

From the article you quoted:

"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."

How the hell can a group of lawyers determine what is and is not medically necessary?

That seems both outside their purview and their expertise. Are we really to believe that lawyers think themselves qualified to make informed decisions about that which is medically necessary and that which is not?

Or am I missing something more fundamental here?

Gerry said...

I think you are, Dave.

Let's apply your logic elsewhere-- for example, environmental laws. What regulations are necessary or appropriate, and which are not? How the hell can a group of lawyers determine what is necessary and what is not?

The answer is that they can, to a certain degree, by getting facts from whatever sources they deem appropriate. Expert testimony, published studies, you name it. They apply their own judgement in how to weigh the evidence, and to craft the laws accordingly. And all of this happens in an environment where political pressures that have nothing to do with science come into play. They do this despite the fact that sometimes people lie and do things dishonestly.

How can a group of lawyers (and non-lawyers as the case may be) determine what is and what is not the best way to handle the ills of a society? How can a group of lawyers determine what is the best way to handle an economy, especially one as large as ours?

Congress makes all sorts of laws that are dealing with subjects that are not the intellectual specialty of lawyers-- where scientists, or doctors, or socialogists, or diplomats, or cops, or blue collar workers are much more likely to be considered the experts.

It is a very messy, sometimes very ugly, process. Flawed to the hilt. The only saving grace about it, is that for over 200 years it (and systems like it) has worked and worked better than other systems of governance.

ShadyCharacter said...

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?

David said...

It seems to me that it takes less effort to birth the baby naturally or surgically than to 'terminate' the baby in the womb then deliver the remains.

Dave, you are not missing anything. Lawyers have an agenda which is to interpret a poorly written law to suit their own agenda.

A practicing obstetrician is fully capable of making the critical decision at the appropriate time.

Keep politics out of the delivery room.

teddy_kgb said...

If D&E is never medically necessary to preserve the health of the mother, than what is the harm in putting in an exception? At that point, wouldn't we just be talking about 1% of all late term abortions, which is in itself a very small percentage of all abortions?

Couldn't Congress just put in the health exception but couple it with a good faith provision for doctors interpreting whether the mother's health is truly at risk?

Simon said...

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.

Pastor_Jeff said...

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?

Gaius Arbo said...

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.

DCWilly said...

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.

Cat said...

DC Willy, with your logic, the judges and lawyers debating the case should recuse themselves...

I don't understand necessity of the partial birth to the mother's life vs. the mother going through labor and killing the baby during birth. Honestly, I don't understand where saving the mother's life is involved? If someone can give me examples, I would like to hear them.

nunzio said...

If legislators can't determine what is medically necessary, then why is smoking pot to alleviate pain illegal?

Congress has put pot in the Schedule 1 "no medical use" category based on its decision that it has no medical value. Can people challenge this judgment?

teddy_kgb said...

Pastor Jeff:

Good for the AMA. I find the 9th Circuit's quote from the American College of Obstetricians and Gynecologists more persuasive, stating that in certain circumstances the procedure in question may be the best or most appropriate procedure to save the health and life of the mother.

(that's on the 7th page of the opinion, no copy paste from .pdf, sorry)

However, the AMA opinion letter does lead to another question. The AMA says that they supported the law because the bill:

"clearly define[d] the prohibited procedure so that it is clear on the face of the legislation what act is to be banned."

But yet, one of the reasons the law has been struck down is the classic "void for vagueness" principle. Reconcilable?

Marghlar said...

Simon said...
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.

Simon, that may be your view, but it certainly is not the present state of the law. Getting an abortion is a medical procedure, and going to a doctor is engaging in commerce. None of the recent cases striking down legislation as beyond the scope of the commerce clause involve regulation of economic activity (even criminal economic activity).

So you would need to make a convincing case about why this legislation isn't regulating an economic transaction (which it is -- the doctors get paid) in order to make the case you are seeking to do.

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.

Gaius Arbo said...


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.

Pastor_Jeff said...


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.

teddy_kgb said...

Pastor Jeff

Actually, I wasn't using the words health and life interchangably. That was an "almost quote" from the 9th circuit opinion that quoted the authority I mentioned. I omitted the elipses, because I'm lazy. I did provide a pinpoint so you can check my accuracy. Have you even read the 9th Circuit Opinion which Ann's original post is based on?

Seven Machos said...

DCWilly: I guess judges and judges cannot weigh in on Enron, either. Tehy are not accountants. There will be no medical malpractice suits. As you say, they are not doctors. Brown v. Board of Education is out. They aren't educators. They can't try crimial cases. They aren't criminals. In fact, I guess lawyers and judges can't deal with anything, except perhaps civil procedure.

Do you stop and think about logic when you write these things, or do you just og on auto-pilot because abortion is so important to you?

Another thing: if abortion is popular, as so many abortion advocates would have us believe, why are you so worried? Congress will simply pass a law outling that abortion is legal. Right? Right?

DCWilly said...

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.

Seven Machos said...

Is a pregnancy a medical condition equal to, say, tuberculosis or a broken arm? I don't think most people think it is. Therefore, Mr. Willy, your argument is specious.

Pastor_Jeff said...


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?

Pastor_Jeff said...

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.

Gaius Arbo said...


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....

Simon said...

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 said...

Pastor_Jeff: What about self-mutilation? What about taking out your own tonsils? Could we make laws against those things?

What about drinking Drano? I once got into a discussion with an Angry Lefter (I believe on this very site) who insisted to me that it is UNCONSTITUTIONAL to drink Drano. Not against the law; unconstitutional. I bet this same person rabidly believes in abortion on demand.

Pastor_Jeff said...

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_kgb said...

The 9th Circuit opinion can be found at


The 2nd Circuit opinion can be found at


As for the debate on the health exception - to say that partial birth abortion is NEVER necessary to preserve the mother's health seems extreme, and at the other end of the spectrum from the open-ended health exception Pastor_Jeff asserts is explicit in Doe.

I hope the new Court will find some room in the middle on this debate.

Seven Machos said...

Pastor_Jeff: Sorry. I am actually completely with you. I was being sarcastic. It did not take. This is always the part of the person being sarcastic. I will be more careful next time.

I thought your point about the bear was eloquent, thoughtful, and astute.

I have read Roe. It is a ridiculous piece of judicial legislation written by a third-rate hack. Roe was decided well before the abortion issue was ripe for decision. Legislative debate was stunted and look where we are now.

Pastor_Jeff said...


Thanks for the links. I share your hopes.

Pastor_Jeff said...

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.

toecracker said...

Roe is a terrible case. But unless Justice Stevens is planning to have dinner over at Ann Coulter's place, I would not count on SCOTUS to overturn Roe anytime soon.

Under Roe, the partial birth abortion legislation (which affects third trimester terms) probably passes muster. Even if the exception of "life of the mother" vs. "health of the mother" turns out to be the issue that is potentially unconstitutional--that can probably be severed from the federal legislation without invalidating it. Objectively, late term abortions (which I define as any within the period the fetus is potentially viable on its own) are really nothing more than legalized infantcide. Beyond saving the mother's life or preventing serious physical harm to the mother, can it ever be morally justified? Perhaps it could be justified under certain circumstances, but we are really only talking about a couple hundred or couple thousand abortions a year (depending whose statistics you believe). There will be a lot of howling and gnashing of teeth on both sides, but I doubt any radical changes (yet).

Aspasia M. said...

I don't know if anyone is interested, but hydrocephalus is one reason D & X is used for the health of the mother.

hi Seven Machos,

I'm the commenter that you got into an argument with over Drano. You said you had a "right" to drink Drano. I responded that there is no constitutional right (no fundamental liberty) to kill yourself, or to cause yourself intentional harm as presently defined by SCOTUS.

For some reason you were telling me that you had the "right" to drink Drano. I said that the state had the right to restrain you from causing yourself harm. Come on, this has already been established by SCOTUS.

I don't know why you brought up Drano, but I can guarantee that if you go up to any health professional, policeman, or counselor and convince them that you are a danger to yourself, you will be restrained and mentally evaluated.

teddy_kgb said...


Does the partial birth abortion law really only affect women in their third trimester/post viability? I just reread the statute and didn't find anything limiting the prohibition to third trimester or post-viability abortions. Do you have a cite or can you tell me where in the statute this language is?

teddy_kgb said...


Hydrocephalus huh? 3:1 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 -but an amusing sidenote is that in the "thank you" section at the end of the book he specifically thanks Judge Reinhardt for his help - the author of the 9th Circuit majority opinion that came out yesterday.

If I'm wrong - well the book is pretty good anyway.

Simon said...

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.

Simon said...

"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.

Adriana Bliss said...

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.

Aspasia M. said...


I found the info. on Wikipedia. (I'm not sure how credible Wikipedia, but I'll look for the site and come back.)

Remember, I'm no Doctor, so I'm not claiming any sort of expertise. But I thought it was interesting.

Aspasia M. said...


It's in the wikipedia under intact dilation and extraction.


Like I said, if I was doing any sort of serious research, I'd look it up in a source I could trust more then wikipedia. But I thought it was interesting.

I believe D and X can also be done before 20 weeks. I'd have to check, though. Like I said, I'm not a doctor.

Matt said...

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.

Simon said...

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?

Pastor_Jeff said...


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."

ShadyCharacter said...

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:


Aspasia M. said...


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.

But I'm just guessing here. I don't know what hydrocephalus is, except perhaps it's related to spina bifida? (Remember to take folic acid vitamins!!!)

I suppose the doctor could always inject the uterus with saline and then induce labor.

What I gather, from a brief ammount of reading, is that there is a procedure called intact dilation and extraction (partial birth abortion) and another, more common procedure called dilation and evacuation? I think?

Anyway, D and X keeps the fetus intact while D and E does not. If tissue is left inside the uterus, that causes danger of infection.

So if a fetus is going to die, either in utero or after birth, from a horrible birth defect, the options are to carry to term, induce labor once the fetus dies in utero, wait for a miscarriage to occur which might induce labor, or do a D & E or D & X.

If a woman is sick (cancer?), and her health is compromised, I gather that a D and E or X is safer then induced labor.

If a fetus dies naturally in utero, I presume that it is legal for a doctor to do a D and X (the partial birth procedure) instead of inducing labor. It sounds like a D and X is safer then a D and E because there's less chance of injuring the uterus or leaving fetal tissue in the uterus to cause infection and/or sterility.

I haven't taken the time to research this properly - so, once again, I'll say I'm not a doctor and this is only what I've found after some brief searching on the web.

nunzio said...

W R T Simon's commerce clause objection, how much do these D&X abortions cost and how many are done a year? If there arent' that many and they don't cost that much I don't see how these economic transactions substantially affect interstate commerce.

Also, are the surgical tools used specific to this type of procedure or are they used for other procedures? And how many are sold in interstate commerce a year?

I was never a big fan of Roe as a constitutional right, but if Congress can regulate abortion under interstate commerce (or under the postal clause b/c some of these aborted fetuses might have grown up to be mail carriers) then I'd just as soon keep Roe on the books.

Simon said...

"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.

Simon said...

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 said...

A kid in my neighborhood had hydrocephalus and had a shunt in his skull to drain the fluid. You would never know there was anything wrong with him other we all were told because his mother was a basket case about him "rough housing" with us and hurting himself. They had a daughter with spina bifida too and she was in a wheel chair. I can't imagine their parents would have preferred their children's brains be sucked out instead of having them here.

I read the article linked. And from what the man admitted, and from what others are saying, the only "risk" to the mother is a having to give birth to a large head (that's what c-sections are for - and yes, they take longer to recover from because it's surgery, the abdominal wall is cut through, etc.) and that the baby would not be "healthy and normal," and therefore a lot more work. I think that's pretty a pretty lame reason to suck the brain out of the baby. I am sorry, I just don't get it.

So far, the only justifications I can find on the web are because the fetus is said to have abnormalities. I have yet to read where this was anything other than a choice not to have a child born with health problems or because would die anyway with "short pain filled lives" as though having your brain sucked out is pain free.

I am sorry. I don't think there's a good enough excuse and I speak as someone with a nephew with severe disabilities including autism, retardation (he's 24, but will always be 2 mentally - but that was due to a medical mistake at birth, not disease), and cystic fibrosis.

Simon said...

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.

Marghlar said...

Simon: you have convinced me that you have a strong normative preference for a Congress with less power than the current congress.

Here's what you haven't convinced me of:

1. That, as a policy matter, it is bad for Congress to have this much power.

2. That as an interpretation of consitutional text, it is improper for Congress to have this much power.

3. That there is anything in the structural constituion that would indicate that the commerce clause, given modern realities, doesn't vest quite broad power (but not plenary, I would agree) for Congress to regulate economic activity, if it has even a small effect out-of-state.

4. That the view you expound must follow from either Lopez or Morrison (esp. post Raich).

Thus, I am left with this. Abortion is an economic transaction. It may be paid for with a credit card, which goes out of state. Morrison specifically limited the application of the Commerce Clause to economic activity -- so we've got that here. So citing Morrison and Lopez as if you have proven some point doesn't really get you very far.

But fine. Say you don't like where modern commerce clause jurisprudence has gone -- that's just fine, and if you make the claim in an interesting way (one that is persuasive either in regards to the normative consequences of such a change, or in the sense that some such change is textually commanded) I'll be interested to read it. I don't think you've done that here or at your previous post.

My ultimate point is this: I think it is quite possible to agree that Morrison and Lopez were rightly decided, without saying that the federal government has no power to regulate economic activity, when a significant amount of that activity may actually cross state lines. We aren't talking about Wickard here -- what you are proposing would involve rolling back the commerce clause so that congress can't regulate mixed intra and inter-state commerce, in the economic sphere.

Just as an aside: your comment re: us commenting on this blog = interstate commerce. May be more apt than you realize. After all, Ann's blog generates revenue from selling ads. She makes that money on the basis of page views, most of which (like mine) are out-of-state. That's commerce, dude. And it sounds pretty interstate to me. Ditto with the guns you bought from out of state.

In closing, don't say what the constitution "requires" unless you can present a pretty forceful argument that the text is only permissive of the meaning you advance. Otherwise, you are suggesting one interpretation of the constitution. Others are plausible. You can make yours the law by amendment or by convincing five SCOTUS justices. Until then, the constituiton certainly will not require it, in any legitimate sense of the word.

nunzio said...


So when 5 Supreme Court justices say the President can pretty much do what he wants, Congress be damned, and this isn't a violation of the separation of powers we'll have to amend the constitution again.

The reason Congress was intended to have limited powers is to insure the liberty of people. This is also the theory behind separation of power b/w the branches.

But Congress wants absolute power over the states do interfere in people's lives while keeping the President in check. If we can do away with limitations on Congress power, then we can do away with limitations on the President's power as well.

Does anyone think federal regulation of partial-birth abortion is a regulation of interstate commerce?

Marghlar said...

nunzio said...

So when 5 Supreme Court justices say the President can pretty much do what he wants, Congress be damned, and this isn't a violation of the separation of powers we'll have to amend the constitution again.


It's interesting that you assume my views of separation of powers -- I was writing about the scope of federal power with respect to the states, not about the relation of power between the federal branches.

In fact, I think that the separation of powers has been eroded by the past few Courts, in a regrettable way. I even agree with Simon's hero, Prof. Calabresi, regarding the indivisibility of the executive power. So don't assume you can pigeonhole people's views.

In fact, federalism and separation of powers are analytically distinct questions. One can have a small goverment without its powers being separated, and a very powerful central goverment with rigid separation. They are different issues.

The constitution is quite explicit regarding divisions of power between the branches. It is much less explicit regarding the scope of Congressional legislative power -- the phrase "commerce among the several states" is susceptible to a wide variety of meanings, as Justice Marshall noted early on.

Does anyone think regulating abortion = interstate commerce? Yes, I do. I think that medical procedures, including abortion, are financial transactions, and such transactions fall within Congress's Commerce power when they occur at least partially interstate -- which the provision of medical services does, especially given modern methods of paying for such services (credit, insurance, etc).

It is perfectly possible to think that a central goverment ought to be quite powerful (and that the constitution allows it to be so), but that it should have its power divided in order to put checks and balances on its power.

Pastor_Jeff said...

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").

anonlawstudent said...

1) To bring this way back to the beginning:

It's interesting that for the purposes of tort liability, the medical profession is the only realm of conduct that the courts will defer wholly to the custom of the industry in determining the appropriate standard of due care. There is a tremendous legal deference to the medical profession (this is relevent to the medical malpractice discussion too). It is as though the courts have declared that it is for the medical profession to decide what consitutes due care -- what is the most appropriate treatment for a patient.

Of course, this deference is limited to the common law; it has no role in the statutory law. Congress can do whatever it wants as long as it's constitutional (as Roe interprets the constitution). What does this mean for legislative interference with doctor-patient relations? For partial-birth abortion?

2) Re: Commerce Power
I think it's consistent with the majority of precedent to permit this regulation. In Lopez, Breyer articulates (as a dissent) a theory of aggregate effect on commerce which fits well. Even under the majority, the specific conduct is still understandable as "commercial" and thus within the congressional realm of power. it's only Thomas' argument, I think, that would bar congressional involvement.

Am I right Ann?

nunzio said...


I was assuming you were against an imperial Presidency; I just don't think it's analytically distinct from an imperial Legislature that acts like a city council (or worse, a condo association).

Unless you're saying that patients go across state lines to get partial birth abortions there's really no nexus to commerce among the states. Of course it's a commercial transaction (unless these are free), but it's not an interstate commercial transaction. For all we know, people pay cash for these things so unless Congress power to coin money includes the power to control how it's spent it's not clear how Congress can legislate here.

If Congress wants to say you can't use a credit card to pay for these, that would be some sort of regulation of interstate commerce at least.

But I don't see any interstate market for partial-birth abortions here, and neither did Congress. And it doesn't appear that even aggregating these intra-state commercial transactions has anything but a negligible effect on a 2 Trillion economy.

Seven Machos said...

Ann Althouse: from "you, a law professor," I need the dumbest advisory opinion ever.

A poster above, Gooey Duck, believes that it is unconstitutional to drink Drano. I say this person misunderstands the distinction between "illegal" and "unconstitutional." It may be illegal to drink Drano, but there is no constitutional issue, just as it is not a constitutional issue if I get a parking ticket for parking in front of a fire hydrant.

Who is correct?

Ann Althouse said...

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.

Seven Machos said...

Thanks. This is why you are the law professor.

Adriana Bliss said...

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.