« Derbyshire Ain't Nuthin' to F*** With | Main | Dear God »

April 18, 2007

Comments

If something happens to one of the four remaining justices who don't completely suck, I'm ready to petition the Senate to delay any replacement until after the 2008 presidential election. Delay, delay, delay.

Wel-ll, you wanted an activist court, and you got one.

The root of this rot is the 1938 decision eliminating English common law in the federal courts (considered a "reform" at the time) or the redistricting decision of 1961 (which made the US House into servants of the state legislatures rather than elected representatives).

The court would have moved against abortion right after 2001, but several sick justices stayed on, in pain and shame, after they went along with the decision on the Florida election. To their credit, they hung on until after the 2004 election. "W" put no one on the court during his first term.

Bush won fairly in 2004. More people with "heart" and "faith" actually voted for him. And the sick justices resigned. You now have the mobocratic, sentimental court that liberals always wanted. It's just the price for not respecting the law of unintended consequences.

I think the best defense, now, is to make sure we get Presidents and Congressional majorities from different parties. An ambitious judge or law professor, anxious to be on the Supreme Court, needs to follow Souter's career and offer no thoughts, give no speeches and write nothing about what he thinks.

Well, I guess Ms. 53 will be scheduling that tubal ligation after all.

The point is that voting for Republicans has consequences and this is one of them.

Oh come on. Coke and Pepsi. Gore would have appointed the same judges. I'm voting for Nader again...

You now have the mobocratic, sentimental court that liberals always wanted.

actually, i've always wanted a mesomorphic, semi-metal court.

My take on the 'activist judiciary' thesis is that our courts have been increasingly forced to resolved vague issues because our legislators do not have the courage to tackle them. The classic example here is the abortion controversy. Although the judiciary is justified in reaching into the penumbras of law to resolve difficult issues, they shouldn't have to, and we shouldn't rely on the courts to resolve penumbral issues. We need our legislators to tackle the issue and resolve it. I would prefer to see a Constitutional amendment declaring that life starts at point X in gestation, and let Congress hammer out an ugly compromise value for X that nobody likes and most people can live with. This is the lifeblood of a successful democracy: compromise. And courts make lousy compromises; legislatures are the place to carry out this work.

actually, i've always wanted a mesomorphic, semi-metal court.

Huh. I always wanted a meromorphic hard rock court, but with blues undertones.

"This case was not decided today. It was decided on November 2, 2004. Don't blame the Court, blame the American people."

Well on this issue, I'll be THANKING the American people. I'm not sure why you would assume there is blame to be assigned. ;)

At least for me, and I know for lots of the evangelical set who otherwise lean sort-of-progressive, this is exactly why they are willing to hold their noses and vote Republican.

"(And if and when that happens, I think people will start coming around to my own process-theory skepticism of judicial power)."

You mean more Democrats. Republicans have had 33 years of realizing how important it is to make sure that your inputs get in place in the judiciary.

The free form 'what I want out of the Constitution and forget the text' jurisprudence is likely to fall out of favor in liberal circles now that their favored judges aren't the ones getting what they want while forgetting the text. I just wish that conservatives wouldn't adopt it as they gain power.

I have very little belief in that wish however. The lure of empowering the Supreme Court to 'find' what you want has been made vastly more appealing after the last few decades. There has been thirty years of intellectual cover given to it.

It never used to be thought that one of the most important part about electing a president was which justices he would appoint. I'm not sure we can easily turn back from that now.

I wish people would get out of the Roe vs Wade mindset. That's how the right has distracted attention for the real purpose behind the push to get rightwing judges into place thoughout the judiciary.

The Supreme Court stopped making "liberal activist" rulings decades ago. The argument that new judges need to be appointed to counter liberal activism is intellectually dishonest.

This becomes clear with the discussion of particular so-called liberal activist cases.

For example,how many Americans want the Constitution to be interpeted to mean that there is no right to privacy? Most people would be outraged by that rightwing, activist authoritarin interpetation and yet one of the goals of those who say they want to end activist liberalism on the Court is to overthrow Griswold and return to the days when the state legislatures could tell married couples what birth control to use or not use.
Another agenda item for the rightwing activists is to reinterpete "takings" so as to rule environmental legislation unconstituional and to end the regulation of private businnesses on public land.

There is no movement to replace liberal activist judges. The movement is to install rightwing activist judges who represent an ideology that has very little support in the electorate. Since the right can't get their way at the ballot box, they are going for the judicial system. Remember the wacky extremists Bush tried to get into the federal court system? All the Regent lawyers, working their way through thhe system, so that they can get appointments to judgeships at some point down the road?

This goes back a ways. James Watt and the Rocky Mountain Legal Foundation were near the beginning. It's an effort that has nothing to do withh Constitutional law and everything to do with promoting a radical right ideology that is a fusion of extremist religion and oldtime Gilded Age Rober Baron values.

It is a much bigger issue than Roe vs Wade.

Mr. Holsclaw, I reject your claim that the judiciary has abandoned reliance on the law in rendering its decisions. The problem lies in the fact that the Court is asked to make decisions on matters in which the Constitution and case law are murky. That, after all, is why we have courts. But we are asking our judiciary to reach ever further into the penumbras of Constitutional law to decide matters. You may disagree with the decisions they make, but to use that disagreement as a basis for accusing the judiciary of ignoring the law is unfair and illogical.

publius: It was decided on November 2, 2004. Don't blame the Court, blame the American people. They voted in a Republican President

Actually, there is considerable question whether they did vote in a Republican President...

...the rest of the discussion about the "ah, let 'em die, who cares" crowd just makes me too angry, and I've already had one fight with so-called "pro-lifers" on Obsidian Wings this month.

A simple majority of people in the US are pro-choice. And the practical reality is that women who need abortions will go have one, including women who want to (or claim they want to) force pregnancy on other woman. No woman wants pregnancy forced on herself.

I'd say that democracy ought to mean that no President would dare appoint a Supreme Court justice who'd overturn Roe vs. Wade, but until you have representative government in the US, why should that matter?

"A simple majority of people in the US are pro-choice."

Not in the sense of the term that you use Jesurgislac. There is not a majority who believe in an unfettered abortion right extending all the way until birth. There is a clear majority for first trimester abortions, other than that, not so much.

A lawyer wrote: The free form 'what I want out of the Constitution and forget the text' jurisprudence is likely to fall out of favor in liberal circles now that their favored judges aren't the ones getting what they want while forgetting the text. I just wish that conservatives wouldn't adopt it as they gain power.

the foregoing quote is a strong argument for a more demanding California bar exam. It has, of course, precisely nothing to do with any theory of constitutional interpretation, liberal or conservative. (well, actually, some of Scalia's Commerce Clause and 11th Amendment writings are pretty free-form, but he'd have to be boiled in oil before confessing that Roe influenced those writings)

"But we are asking our judiciary to reach ever further into the penumbras of Constitutional law to decide matters. You may disagree with the decisions they make, but to use that disagreement as a basis for accusing the judiciary of ignoring the law is unfair and illogical."

When they reach a decision on a question that the Constitution does not give to them, they are ignoring the Constitution and their place in the Constitutional order if they decide on it. Just because something is asked of the Supreme Court does not mean that it has to answer. Not everything is a Constitutional issue.

It is so ironic that people will cheer this decision as an end to liberal activism and claim it as a return to the Constitution when, in fact, it is a perfect example of rightwing activism in medical decisionmaking.

Take, for example, a woman with Trisomy 13. Triisomy 13 is a genetic defect which causes the baby to die in the womb. If the baby is not aborted the woman will die. Often trisomy 13 isn't identified until the pregnancy starts to go bad very late. Now, because of the ideoplogical driven mmicromanagement of the rightwingers on the Supreme Court, a woman with this problem will be unable to get treatment.

The baby will die either way.

Sebastian,

"When they reach a decision on a question that the Constitution does not give to them, they are ignoring the Constitution and their place in the Constitutional order if they decide on it. Just because something is asked of the Supreme Court does not mean that it has to answer. Not everything is a Constitutional issue."

Umm, no. The Supreme Court decides, and is called upon to decide in fulfillment of its constitutional role whereby "The judicial Power of the United States shall be vested in one supreme Court, and in such inferior Courts as the Congress may from time to time ordain and establish" (Article III, Section 1) lots of cases which do not impact on the Constitution. Perhaps you should re-phrase?

Francis,

Precisely. Other examples would be the conservatives' dissents in the flag-burning cases and the Kelo dissent.

"the foregoing quote is a strong argument for a more demanding California bar exam. It has, of course, precisely nothing to do with any theory of constitutional interpretation, liberal or conservative."

How do you even know what my quote means? Shouldn't you analyze the penumbras and emmanations of "free-form" before you reach judgment? If you employ Marshall or Brennan's techniques you could easily find conclusions that are directly contrary to the ordinary reading of the text.

Why limit yourself to personal attacks when you disagree with me?

Why don't you instead show me a good thumbnail of liberal jurisprudence that gives me a good hint of the purpose of bothering with an amendment process when apparently you kind find any possible type of right by peering deeply enough into the penumbras. And if you don't believe that you can find any rights by peering deeply enough into the penumbras, it would be nice to know where that limit is, why you think it exists, and where in the Constitution it is grounded. Because until then, it looks pretty free-form.

I am waiting for someone to make a convincing case that Carhart means the sky is falling.

It seems pretty limited to affiming a ban on a little-used procedure that has perfectly good alternatives ... a procedure that none of us would have heard of, except the Dobsonites picked it for a test issue.

I'm a bit concerned about whether there's no longer a required health exception, but I think the limited nature of the holding leaves room for a health exception to be upheld on an as-applied basis.

In short, if THIS is the most burdensome restriction on abortion we're going to get out of the present Court, then sing hallelujah, ye choirs of feminist angels.

Mr. Holsclaw writes, "When they reach a decision on a question that the Constitution does not give to them, they are ignoring the Constitution"

Indeed so. But the determination of what questions to consider is also theirs, and again, you may disagree with their decision, but your disagreement does not justify accusing them of ignoring the Constitution.

You have every right to voice your disagreement with Supreme Court decisions; there are some that I strongly disagree with. However, the jump from "I disagree" to "they're ignoring the Constitution" is not logical.

Anderson: It seems pretty limited to affiming a ban on a little-used procedure that has perfectly good alternatives ...

No, it doesn't.

When intact D&X is used, it's used because it's the best procedure for the health (and future fertility) of the pregnant woman.

What the Supreme Court have just affirmed is that they don't care. It sounds icky, so women shouldn't be able to access it, and doctors should fear prosecution for doing the best for their patient.

Saying "there are plenty of perfectly good alternatives" is like saying there are plenty of perfectly good alternatives to an appendectomy. Sure there are, if you're just having random surgery for the hell of it - but not if you have an inflamed appendix.

In short, if THIS is the most burdensome restriction on abortion we're going to get out of the present Court, then sing hallelujah, ye choirs of feminist angels

Because only a few women will die as a result of today's decision? Well, "a few" is certainly better than the thousands who will die if/when Roe vs Wade is overturned, but even a few people dying and more people suffering permanent damage to their health, all because a bunch of ignorant idiots hear about a necessary medical procedure and go "ooo, ick!" - that's nothing for feminists, angels or otherwise, to sing over.

My mere disagreement is not what justifies "they're ignoring the Constitution". A jurisprudence (such as explicitly made by Brennan and Marshall) that the Constitution specifically forbids all forms of capital punsishment, when the Constitution clearly contemplates at least some possible captial punishment is. Justifying that by saying that the term "cruel and unusual" has evolved in our society to outlaw capital punishment while simultaneously trying to overrule the actual societal judgment is ignoring the Consititution to enact your personal preferences.

The fact the Marshall-style argument is considered even a half serious legal argument is a very strong indictment of the kind of legal education that Francis claims to be so worried about.

The procedure is little used because most pregnancies either proceed well or have significant problems earlier or are terminatedby abortion earlier. The idea that women wait to the last minute and then run out to get an impulsive abortion of viable fetus is a myth.

The weird thingis that if a person is sinerely "pro-life" the very late term abortions are the most justifiable since they are done in response to medical emergency. Mostly because the mother's life inn in dager and also because the feus isn't viable.
If thhere was a suitable alternative,I'm sure it would be used. However, when a woman ends up in the emergency room with a life-threanening pregnancy the standard of care, a late term abortion, is now illegal. That piece of sky might not fall on you,Anderson, but it will result in the death of someone's loved one.

This ruling should put to rest any notions about conservative (meaning limited) Supreme Court rulings. This is a federal law that was upheld, one that micromanages the medical decisions made in hospitals nation wide. So the "conservatives" on the Supreme Court have decided that the state at the federal level can make a decision that would normally be made in the context of standard of care by a doctor. Statism. Big government interference. Am I going to hear cries of outrage about this from the NRO writers?

Sorry about all thhe sentence frags, spacing errors, etc. For some reason I can't see them until I preview and thhen I can't correct without losing the post and havinng to type it all over again!

When intact D&X is used, it's used because it's the best procedure for the health (and future fertility) of the pregnant woman.

See, this is what I'm wanting explained. How so?

However, when a woman ends up in the emergency room with a life-threanening pregnancy the standard of care, a late term abortion, is now illegal.

Well, no. The statute includes an exception for threats to the life of the woman, or so everything else I've read today has said. It didn't say "life or health," is the new twist.

Well, no. The statute includes an exception for threats to the life of the woman, or so everything else I've read today has said.

Why then does the New York Times say the following(link in post)?

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.

Mr. Holsclaw, how does interpreting the phrase "cruel and unusual" by modern norms differ from using the phrase "freedom of the press" to apply to media that are most certainly NOT printing presses?

Has anyone read the opinion in enough detail to know if they say anything about the life of the other twin?

DB&X is the treatment of choice where a woman is carrying twins and one of the twins dies (or is dying) in utero. Basically, it's the best chance for getting the dead twin out while leaving the healthy twin in until it's full-term.

I'm sure there's no legal bar to doing it when it's absolutely certain that the one twin is dead. But what about when it's only mostly dead? What's the standard of death for fetuses? (feti?) How long do you have to wait, risking the life of the healthy twin, until the dying twin is really 100% dead?

Rambuncle, if you will re-read my comment, I noted that the statute is said to provide an exception where the woman's LIFE is in jeopardy, but not for her HEALTH.

That is why the NYT article you quote says what it does.

See, this is what I'm wanting explained. How so?

Well, I can't say since I am not a licensed medical doctor. Doing some clicking through, the American College of Obstetricians and Gynecologists says this:

The Act purports to ban so-called "partial-birth abortions;" however, "partial-birth abortion" is not a medical term and is not recognized in the field of medicine. The Act defines "partial-birth abortion" in a way that encompasses a variation of dilatation and evacuation (D&E), the most common method of second-trimester abortion, in which the fetus remains intact as it is removed from the woman's uterus. The Act's definition also encompasses some D&E procedures in which the fetus is not removed intact.

Over 95% of induced abortions in the second trimester are performed using the D&E method. The alternatives to D&E in the second trimester are abdominal surgery or induction abortion. Doctors rarely perform an abortion by abdominal surgery because doing so entails far greater risks to the woman. The induction method imposes serious risks to women with certain medical conditions and is entirely contraindicated for others.

The intact variant of D&E offers significant safety advantages over the non-intact method, including a reduced risk of catastrophic hemorrhage and life-threatening infection. These safety advantages are widely recognized by experts in the field of women's health, authoritative medical texts, peer-reviewed studies, and the nation's leading medical schools. ACOG has thus concluded that an intact D&E "may be the best or most appropriate procedure in a particular circumstance to save the life or preserve the health of the woman, and only the doctor in consultation with the patient, based on the woman's particular circumstances can make that decision." [ACOG Statement of Policy on Abortion (reaffirmed 2004)]

That's no in-depth medical description of the different procedure options, and all the pros and cons. All it says is what some doctors think.

Thank you for thhe correction, Anderson. I didn't read the NYT article carefully enough.


So I guess the federal government is now empowered to interfere in medical decisions to the detriment of a woman's health ,but not enough to actully kill her.

But what about when it's only mostly dead? What's the standard of death for fetuses?

"Mostly dead"???

So I guess the federal government is now empowered to interfere in medical decisions to the detriment of a woman's health, but not enough to actually kill her.

Welcome to the patriarchy? The exact level of detriment to health is what the Court evidently found to be an open question, which is why I'm blegging for it here.

Rambuncle provides the ACOG's take, which is certainly interesting; I am curious what we know about the actual risk involved.

Rambuncle, if you will re-read my comment, I noted that the statute is said to provide an exception where the woman's LIFE is in jeopardy, but not for her HEALTH.

Missed that. Apologies. Though I do wonder, where is the line drawn? How much health must be put at risk before it is life-threatening?

What's the standard of death for fetuses? (feti?) How long do you have to wait, risking the life of the healthy twin, until the dying twin is really 100% dead?


I've only read the syllabus so far, but one very interesting point there that may answer your question is:

"if intact D&E is truly necessary [for health but not life of the mother] in some cases, a prior injection to kill the fetus allows a doctor to perform the procedure, given that the Act's prohibition only applies to the delivery of "a living fetus."

Also, it looks like the Court has not -- quite -- gotten rid of the "health of the mother" constitutional requirement. The Court deferred to Congress's finding, given that there is medical dispute on this point, that this particular procedure is never actually necessary for the mother's health.

That finding seems dubious to me, but IANAD.

It also suggests that so long as Congress can find a doctor somewhere who will say that x is not necessary for the mother's health, that's good enough. This is a little disturbing, especially since the Court also said that some of what Congress found on the subject has since been proven plain wrong, and apparently that didn't matter so long as some of it was not disproven.

OTOH, I can't really argue with the point that making policy decisions based on disputed evidence is more the job of Congress than the Court.

I don't know why publius assumes Roe is threatened by this decision. Alito and Roberts both concurred with the majority opinion which explicitly reiterates support for Roe. Scalia and Thomas are the judges who declared their open hostility to Roe.

I find it hilariously ironic that the upshot of the Supreme Court's decision will be for doctors to kill the fetus before performing the otherwise banned procedure. It's not properly a Catch-22, but it certainly smacks of that kind of logic.

Standard IANAL disclaimer…

If I am reading Insty right, he is saying that (beyond he thinks it should have been struck down) that Thomas is saying they didn’t raise the right issue – bring it back and raise the Commerce Clause and we’ll see:

PARTIAL-BIRTH ABORTION BAN UPHELD. I believe that the ban should have been struck down on commerce clause grounds as outside Congress's power to regulate interstate commerce. Interestingly, the opinion contains this observation from Justice Thomas:

"I also note that whether the Act constitutes a permissible exercise of Congress's power under the Commerce Clause is not before the Court. The parties did not raise or brief that issue; it is outside the question presented; and the lower courts did not address it."

The fact the Marshall-style argument is considered even a half serious legal argument is a very strong indictment of the kind of legal education that Francis claims to be so worried about.

why, it's just ASTONISHING that Marshall could assemble majorities! What kind of legal education did those Justices have?

(sigh)

SH, you continue to blur the distinction between facial vs. as-applied challenges. You personally may take the view that the Sup Ct's striking-down of the death penalty was a facial challenge, but you are in a tiny minority. Most lawyers and scholars find the statement about "tinkering with the machinery of death" to be pretty clear evidence that the Justice was appalled (and, based on the evidence, rightly so) with the way that States were applying the death penalty.

Put another way, my view is: it is NOT the case that the death penalty would always be unconstitutional. It WAS the case that a plurality of Justices thought that radically different procedures were necessary to ensure that imposition of the death penalty didn't violate the 5th, 8th and 14th amendments.

you are free to hold a different opinion. but when you fail to disclose your personal, minority, view and instead launch an overall attack on the legitimacy of the Court, I think you deserve the attacks you get.

you harp on the tyranny of the Rule of 5. Yet somehow you never discuss the sins of the conservative wing. What possible textual basis exists for the current jurisprudence on the 11th Amendment? Why was the Court one vote away of finding the EPA's failure to regulate CO2 emissions non-justiciable despite clear Congressional intent to the contrary?

How should the Court interpret the 9th amendment? How is it the case that forcing a woman to carry an unwanted pregnancy to term is not a violation of her 5th amendment liberty rights? Since women didn't have the right to vote at the time of the Constitution, what weight should be assigned to original intent/meaning for laws that discriminate on the basis of sex?

sure there have been lousy decisions. But to deny the legitimacy of decisions one doesn't like as being purely extra-Constitutional, without deeper analysis, is poor legal practice.

"Mostly dead"???

It's a joke, son. A little.

For born people, "dead" is "brain dead". Heart transplants are only possible because a *person* can be legally dead while their body is mostly alive.

So is a fetus "dead" when it's brain dead? What about fetuses that don't have brains yet? What about the fact that we can't do brain scans on fetuses?

And again, how are the health and life of the second twin supposed to factor into these decisions?

What about fetuses that don't have brains yet?

According to Wiki, there's measurable EEG activity around the end of the 1st trimester, & the banned method is apparently used in later trimesters.

Agreed however that multiple births raise serious questions about the statute.

Interestig that they just skipped over the commerce clause issue, briefed/presented or not. Would they not strike down a statute that was obviously unconstitutional just becuase the parties did raise the issue?

did "not" raise the issue, that is.

Take, for example, a woman with Trisomy 13. Triisomy 13 is a genetic defect which causes the baby to die in the womb. If the baby is not aborted the woman will die. Often trisomy 13 isn't identified until the pregnancy starts to go bad very late. Now, because of the ideoplogical driven mmicromanagement of the rightwingers on the Supreme Court, a woman with this problem will be unable to get treatment.

The baby will die either way.

I didn't understand why the mother would die, so I looked it up. Appearantly not even all the kids die. Though I must admit that with the survival figures changes are small (and I would see it as a perfectly understandable reason to abort). I still don't see why the mother would die though.

I think there are cases where D&E are appropriate. The partial birth abortus is a very specific kind though - banning it doesn't mean you cannot have other ways to abort.

Dr. Science: I googled the twin pregnancy too, because I actually had a friend with a dead fetus in a twin pregnancy who decided (together with the doctor) that it was more risk to abort than to let the fetus stay. But appearantly that is very dependend on the stage of gestation and the genders of the twins. In some cases it *is* necessary to abort the dead fetus. But I don't think they would need a partial birth abortion to do that savely; but ianad.

The risk for the life of the mother is seldom a valid argument imho, and it feels contreived. Most women were expecting to deliver a bigger baby later in pregnancy, so the life-threatening risc seems to exist only in very rare cases. But I do agree that for some women delivery *can* be a risc at getting handicapped. The risc of ending in a wheelchair might be taken for a life baby, but is not worth it for a dead one.

Whilst googling all these things I did come upon this really weird article about merging fetuses. I had no idea that it was possible for people to have two different sets of DNA.

All right, here is the perspective of a woman who is 40 years old and joyously 7 months pregnant. There are significant unintended consequences to this ruling that exacerbate risks to both fetus and woman, especially an older woman.

In my 19th week, I was pressured to get an amniocentsis. This is a procedure where fluid is extracted from the fetal sac to determine if there are chromosomal defects in the baby's DNA. Most defects result in miscarriage but the older you get the more likely there will be a defect which results in a stillborn child.

According to my doctors, an amniocentsis is much safer if you wait until later in the pregnancy, but the procedure is offered early in the 2nd trimester so a woman still has the option to end an ill-fated pregnancy. Banning these late term procedures pushes the performance of an amniocentsis earlier in a woman's pregnancy putting the woman and the fetus in greater risk from miscarriage.

Most of the men on the Supreme Court and in our administration don't get it. Pregnancy is a risky time for women. We all want to end up with healthy happy babies but the story doesn't always end well. When I had a miscarriage last year, the paramedics showed up within 4 minutes of my 911 call and then were delayed leaving my driveway for 15-20 minutes trying to find a hospital that would do a D&C just in case I needed one (I didn't). When you are bleeding heavily, this seems like an awefully long time and, you know, it is. The paramedics needed to call 3 hospitals before they found one. Now imagine that I have just been in a car accident and I am bleeding out and the paramedics are trying to find a hospital that will perform an emergency D&E. Both the D&C and emergency D&E are legal under the federal ban but you know it probably just got real tough to find a hospital to do one.

Don't remain blissfully ignorant of the consequences of these bans. They negatively affect the care of woman with both planned and unplanned pregnancies.

Be careful out there.

"SH, you continue to blur the distinction between facial vs. as-applied challenges. You personally may take the view that the Sup Ct's striking-down of the death penalty was a facial challenge, but you are in a tiny minority."

You're the one who is blurring. I think the Supreme Court was wrong in Furman, but I'm criticizing Marshall and Brennan particularly in their death penalty 'jurisprudence'. They are two of the more revered judges in the liberal understanding of how judges should operate, and their death penalty decisions show a callous disregard for the proper function of the judicial process. After expouding at length in Furman about how the moral acceptability of the death penalty had changed in the United States to transform "cruel and unusual" into barring the death penalty (something he had to do since the interaction of different areas of the actual text meant that it could not have been meant to be barred when originally written.) Marshall is forced into badly asserting in Coker that the death penalty is just wrong in his opinion, and that that is enough:

The death penalty, I concluded, is a cruel and unusual punishment prohibited by the Eighth and Fourteenth Amendments. That continues to be my view.

I have no intention of retracing the "long and tedious journey," id., at 370, that led to my conclusion in Furman. My sole purposes here are to consider the suggestion that my conclusion in Furman has been undercut by developments since then, and briefly to evaluate the basis for my Brethren's holding that the extinction of life is a permissible form of punishment under the Cruel and Unusual Punishments Clause.

In Furman I concluded that the death penalty is constitutionally invalid for two reasons. First, the death penalty is excessive. Id., at 331-332; 342-359. And [428 U.S. 153, 232] second, the American people, fully informed as to the purposes of the death penalty and its liabilities, would in my view reject it as morally unacceptable. Id., at 360-369.

Since the decision in Furman, the legislatures of 35 States have enacted new statutes authorizing the imposition of the death sentence for certain crimes, and Congress has enacted a law providing the death penalty for air piracy resulting in death. 49 U.S.C. 1472 (i), (n) (1970 ed., Supp. IV). I would be less than candid if I did not acknowledge that these developments have a significant bearing on a realistic assessment of the moral acceptability of the death penalty to the American people. But if the constitutionality of the death penalty turns, as I have urged, on the opinion of an informed citizenry, then even the enactment of new death statutes cannot be viewed as conclusive. In Furman, I observed that the American people are largely unaware of the information critical to a judgment on the morality of the death penalty, and concluded that if they were better informed they would consider it shocking, unjust, and unacceptable. 408 U.S., at 360 -369. A recent study, conducted after the enactment of the post-Furman statutes, has confirmed that the American people know little about the death penalty, and that the opinions of an informed public would differ significantly from those of a public unaware of the consequences and effects of the death penalty. 1

Even assuming, however, that the post-Furman enactment of statutes authorizing the death penalty renders the prediction of the views of an informed citizenry an [428 U.S. 153, 233] uncertain basis for a constitutional decision, the enactment of those statutes has no bearing whatsoever on the conclusion that the death penalty is unconstitutional because it is excessive. An excessive penalty is invalid under the Cruel and Unusual Punishments Clause "even though popular sentiment may favor" it.

That is pure "I say so" jurisprudence. The fact that the death penalty had been allowed was of no consequence. The fact that text passed at the same time clearly showed that the 8th Amendment didn't ban it at the time, was of no consequence. The fact that he had initially justified banning it by appealing to the changing mores of the American people, was of no consequence. He was left with nothing but his personal feeling that it was excessive. And that is not Constitutional law.

Brennan writes (after failing to admit that the evolving standards of decency didn't actually evolve the way he wanted):

The fatal constitutional infirmity in the punishment of death is that it treats "members of the human race as nonhumans, as objects to be toyed with and discarded. [It is] thus inconsistent with the fundamental premise of the Clause that even the vilest criminal remains a human being possessed of common human dignity." Id., at 273. As such it is a penalty that "subjects the individual to a fate forbidden by the principle of civilized treatment guaranteed by the [Clause]." 5 I therefore would hold, [428 U.S. 153, 231] on that ground alone, that death is today a cruel and unusual punishment prohibited by the Clause. "Justice of this kind is obviously no less shocking than the crime itself, and the new `official' murder, far from offering redress for the offense committed against society, adds instead a second defilement to the first." 6

That doesn't fit with the history of the Constitution or its text at all.

Neither of these opinions in Coker are grounded in Constitutional jurisprudence. Neither of them represent the legitimate functioning of judges. Both are regularly invoked with approval in debates about the Constitutionality of the death penalty. You can't appeal to the evolving standards of decency of the US citizens, abandon that when the evolving standards have gone against your personal view, and be left with anything but the naked will and power of 5 votes on the Supreme Court. At which time you have undercut your ability to say anything other than "I do not currently have 5 votes". That isn't jursiprudence and that isn't law.

Would they not strike down a statute that was obviously unconstitutional just becuase the parties did raise the issue?

They can certainly do so if they choose. You don't argue it, you lose it, is the rule. A statute would have to be Very, Very Unconstitutional Indeed for the Court to reach out & strike it down like that.

As for Clevergirl's good points about the actual effects of the ban, I just don't see how the Court could reach those on a *facial* challenge. We'll doubtless see such suits in the near future.

"Interestig that they just skipped over the commerce clause issue, briefed/presented or not. Would they not strike down a statute that was obviously unconstitutional just becuase the parties did raise the issue?"

With certain very limited exceptions (not having subject matter jurisdiction being the one I can most easily think of), the Court is not supposed to consdier arguments that aren't raised because a full contested hearing of all the issues will not have been aired. The justification is the judges might miss something important which would have been raised if it had been directly addressed, and thus come to the wrong decision.

Anderson/Seb - I was thinking of a case of a law that prohibited criticizing public officials on pain of one year in prison that was challenged as "cruel and unusual punishment" rather than a violation of the 1st A. (or both) and the court deciding that "hey, prison is not cruel and unusual so case dismissed" and ignoring the whole free speech thing because the parties failed to raise it. Couldn't it, for example, call for briefs and arguments on the commerce clause question?

A short tour of the right-o-sphere makes me believe this is mostly political fodder and not a step on the road to overturning Roe.

The lawyer types are indicating that the justices are practically inviting a challenge on the basis of either the commerce clause or “health of the mother”. In short – don’t get too happy right wingers as this is not likely to stand.

One good point I saw that would contradict publius’s main point: Casey was reaffirmed in 1992 when the court had 7 Republican appointees. So Republican appointee majority does not automatically equal bye-bye Roe. Certainly it will be presented that way over the next 18 months…

Ugh, I think that on your hypo the Court might reach the 1st Am. issue itself, or call for briefing; but it's unlikely that the Commerce Clause issue is so clear-cut.

IMHO, Thomas's op proffered a devil's bargain -- "come, friends, this regulation cannot be upheld under a narrow reading of the Commerce Clause" -- that the left wing of the Court obviously wouldn't accept.

No doubt in my mind that Thomas would happily accept abortion on demand in exchange for a pre-New Deal version of the Commerce Clause.

"Ladies and gentlemen of the jury, I'm just a caveman. I fell on some ice and was later thawed by some of your scientists. Your world frightens and confuses me! When I see my image on the security camera at the country club, I wonder, are they stealing my soul? I get so upset, I hop out of my Range Rover, and run across the fairway to the clubhouse, where I get Carlos to make me one of those martinis he's so famous for, to soothe my primitive caveman brain.

Marbel: . The partial birth abortus is a very specific kind though - banning it doesn't mean you cannot have other ways to abort.

Yes, and who cares if the other ways are more dangerous or more damaging, right? No reason that a woman's health should ever be prioritised above the right of non-medical people to go "ooo, ick".

At least for me, and I know for lots of the evangelical set who otherwise lean sort-of-progressive, this is exactly why they are willing to hold their noses and vote Republican.

Ha! This is too rich not to be commented upon. Just what part of the standard Republican platform is otherwise so stinky to these "sort-of-progressive" evangelicals? The anti-gay part, the anti-drug part, the pro-religion part, the anti-crime part, or the pro-tax-cut part?

As for you, given your apparent distaste for anything even remotely associated with the Democrats, I can't imagine you have to hold your nose too tightly when you punch that "R" chad.

"Just what part of the standard Republican platform is otherwise so stinky to these "sort-of-progressive" evangelicals? The anti-gay part, the anti-drug part, the pro-religion part, the anti-crime part, or the pro-tax-cut part?"

Well it isn't the anti-drug part, because that is held equally by the standard Democratic platform.

The anti-gay part and pro-religion part are largely a function of the Roe v. Wade energized Christian Right. That came later, not before.

I'm not at all sure the anti-crime part has an evangelical valence at all.

I'm very sure that the lower taxes part has very little evangelical valence.

So your point is too scattered for me to really respond to.

"As for you, given your apparent distaste for anything even remotely associated with the Democrats, I can't imagine you have to hold your nose too tightly when you punch that "R" chad."

My distate is very largely shaped by the Democratic Party response to Roe, so... I guess I don't understand your objection to me noting that it is one of the large influences in why I have trouble voting for the Democratic Party.

So your point is too scattered for me to really respond to.

OK, Seb, I'm a dumb guy. Spell it out for me, explicitly: Which parts of the national GOP platform are so distasteful to evangelicals that they have to, in your words, "hold their noses" to vote Republican?

I think most evangelicals are much more open to certain types of welfare programs and public assistance programs than the Republican Party is. I also think that evangelicals have historically (until very recently) been much more isolationist than many recent Republicans. Furthermore I think that the anti-government stance taken by many evangelicals is a direct result of Roe and a related belief that government can't be trusted on moral issues. (This of course became twisted and complicated as Republicans gained power with evangelical help).

Furthermore I think that the anti-government stance taken by many evangelicals is a direct result of Roe and a related belief that government can't be trusted on moral issues.

Certainly the Bush administration has done its very best to prove that point, yes.

(Of course, it depends how you define "moral issues".)

I think most evangelicals are much more open to certain types of welfare programs and public assistance programs than the Republican Party is.

Yes: some Christians do still believe that when Jesus said it was necessary for your salvation at the Day of Judgment that you feed the hungry and clothe the naked, he actually meant it. Whereas right-wing Christians tend to forget that bit and dive right into the lengthy passages where Jesus forbids gay marriage, rants against a woman's right to choose abortion, and urges everyone to vote Republican.

OCS, I agree with the caution that this result may not stand. The Court rejected a facial challenge, and, more or less, invited an as applied challenge. That means that instead of a bunch of doctors and other experts sitting around talking hypothetically, there will have to be, and will be, an actual woman plaintiff, with an actual medical condition.

If that particular woman can show that forcing the doctor to use the approved procedure instead of the banned procedure would produce undue risk of harm in her particular circumstances, then the statute won't apply.

It's important to keep in mind the mechanics of this: the woman, her doctor, and her lawyer are going to pick the time and the court. They're going to file a case seeking permission to use the banned procedure because the permitted procedures are too dangerous. They'll ask for a ruling within, what 3 days? A week? If it's denied, they'll appeal, asking for a similar time line. The defendant is going to be the AG, I suppose. That means some US Attorney who's got less of an understanding of abortion law than most law students (it not being part of a prosecutor's regular job) is going to have to be up to speed, with adverse medical witnesses in a day or two.

I'm going to guess that plaintiffs win as applied challenges, if they've prepared their cases (and doctors who are likely to perform the banned procedure know who they are, and why they want to do it in any particular case).

* * *

The dog that really didn't bark here is that the two new guys didn't join the Thomas/Scalia concurrence. Maybe they're being cagey, or maybe they think Casey is a correct application of the Constitution. The one thing we know for certain is that they were explicitly asked if they wanted to attach their names to a short statement saying that Casey is not required by the Constitution, and they said 'no thanks.'

"Yes: some Christians do still believe that when Jesus said it was necessary for your salvation at the Day of Judgment that you feed the hungry and clothe the naked, he actually meant it. "

And perhaps they believe that means they should feed the hungry and clothe the naked, and that this obligation has nothing to do with forcing somebody else to pay for a government program?

SH, since you apparently believe that "cruel and unusual" should be interpreted by late 18th-century standards, Im interested to hear whether you think that the 2nd amendment should also be interpreted by the standards of the day. That is, everyone is free to own a musket. (Variation on a question above that you saw fit not to answer).

He was left with nothing but his personal feeling that it was excessive. And that is not Constitutional law.

He really should've referred to appendix B of the Bill Of Rights, wherein all of the terms used are defined clearly. Oh, wait, there isn't an appendix B in my copy. Did anyone get appendix B?

Really, anyone with a passing familiarity with the Constitution and it's origins should know that the authors intended (explicitly, via the 9th amendment, implicitly via the Hamiltonian view that the BOR was unnecessary as the rights of individuals already existed) for rights to be protected that were not specifically enumerated. That is, they *wanted* judges who would guard liberty jealously and without textual restraint.

It is the jurisprudence of Bork's "inkblot" that lacks historical support, not the jurisprudence that would preserve the rights of the people above all else.

Brett: And perhaps they believe that means they should feed the hungry and clothe the naked, and that this obligation has nothing to do with forcing somebody else to pay for a government program?

I suppose it would depend whether they felt it was a moral requirement - that Jesus was saying it was always right to feed the hungry and clothe the naked - or whether they see it as a religious obligation without any particular point at all beyond "Wait, honey, did you remember to feed the hungry today?" - "Sure, dear, and I clothed the naked, now let's head down to the mall."

If it's just simply the right thing to do, then doing it more effectively and thoroughly - as, for example, by passing laws that ensure the people collectively pay for and provide welfare programs - can only be a good thing.

If it's a religious obligation without moral meaning, such as (for example) avoiding eating a cheeseburger or avoiding gay marriage, then obviously it would be wrong to use public money to pay for it.

Do you discharge an obligation to do something, by forcing somebody else to do it? "Wait, honey, did you remember to feed the hungry today?" "No need, we voted to raise Bill Gate's tax rate, remember?"

Anyway, there's this space between what people ought to do, and what they ought to be forced to do, between what they ought not do, and what they ought to be forced to refrain from.

It's called "freedom".

CharleyCarp: Thanks for the clarification. I was not thinking of this in terms of it would come down to one woman and her doctor, right timing, etc. (I did know that at some level, but…)

I guess I normally think of the law more as an abstraction than as individuals. I do know it is individual cases that make law, I just don’t often think of it that way. So it is helpful to be reminded of that.

Jes,

The part I do not understand regarding this specific form of abortion is how the mother is safer or healthier if the baby is killed after its head is already out of her. I just can't see it. Can you tell me what I am missing?

Evangelicals are not all alike. Seb is right. Many are open to voting Democratic and, in deed, the Democrats are far closer tothe core values of many evangelicals(work for the common good, take care of each other) than the Republicans. The Republicans have been very successfull in dumbing down the notion of values so that it means nothing more than hating gays and opposinng abortion rights. Democrats have inadvertantly collaborated in this by always discussing issues as righhts issues, rather than moral or values issues, as if values and morality didn't matter to them. This is changing, I hope. The more Democrats discuss tradition liberal positions and issues as expressions of morality and values, the more support we'll start gettinng from evangelicals.

For example right now all of the leading Deomcrats have issued basically the same sttatement about how the Supremem Court is threatening a woman's right to choose. It would be far more effective if they condemned the Supremem Court for giving the federal government the power to deprive a sick woman of a medical care option that she might need during a failed pregnancy. After all women don't really choose to have late term abortions. They are forced by the circumstance of severe complications. Discussing it as a right to choose makes the situation seem far more trivial than it is.

jrudkis:

It is my understanding that the so-called "partial birth" procedure involves basically crushing the head and/or removing the brain, so as to get the fetus out of the uterus without dialating the cervix. This is why it is often used to get out one of a pair of twins: you don't want to open the cervix more than you have to, the better to keep the other kid inside the uterus to grow some more.

And this is why it is much less stressful than inducing labor -- dialating the cervix, even if not all the way, is most of the labor in labor. It is also especially stressful if the woman's body hasn't been getting ready ahead of time.

I should add that, though I am not a medical doctor, I have seen 18th & 19th century obstetric instruments and read detailed accounts of their use, and *no* modern medical procedure seems horrible by comparison.

Do you discharge an obligation to do something, by forcing somebody else to do it?

Well, we force medical professionals, teachers, and social workers to report signs of child abuse or molestation. It's a select group of people, not the general population- but we put a standard on their behavior. Likewise, medical professionals are IIRC obligated to step in and offer assistance if they come upon someone needing assistance.

I suppose one could take your argument and twist it to say "Jesus said don't hurt people, but we shouldn't have laws against that- it's called freedom." I point this out because (unless you're an anarchist) you think we need some laws and some constraints (and perhaps some taxes and government spending). If you do, then we're merely arguing about degrees of restriction- but that in my experience never satisfies the libertarian yearning to be on the high horse.

Finally, Id point out that these hypothetical evangelicals don't have to be libertarians- they might well decide that a government program was the most effective way of reaching their goal, or that Jesus's command meant "by any means necessary". In extreme cases, perhaps the *only* way to reach their goal (eg only a government-supported intervention has any real hope of stopping the atrocities in Darfur).

Doctor Science,
But it sounds like in this case, it excludes what you are talking about, and is only for when most of the baby is already outside the mother:

§1531(b)(1), as a procedure in which the doctor: “(A) deliberately and intentionally vaginally delivers a living fetus until, in the case of a head-first presentation, the entire fetal head is outside the [mother’s] body … , or, in the case of breech presentation, any part of the fetal trunk past the navel is outside the [mother’s] body … , for the purpose of performing an overt act that the person knows will kill the partially delivered living fetus”; and “(B) performs the overt act, other than completion of delivery, that kills the fetus.”

Color me unimpressed, Sebastian, if the big pile of stink in the middle of the room that causes evangelicals to vote for Republicans only with nostrils pinched shut is that . . . Republicans don't like welfare enough. Based on my own experiences in evangelical churches -- including one where my wife's stepfather is a pastor -- this isn't even close to correct. The evangelicals I know gladly embrace the GOP slate lock, stock and barrel.

It's called "freedom".

Ah yes. The freedom to allow other people to starve. A central religious right.

I'm not at all sure the anti-crime part has an evangelical valence at all.
I'm very sure that the lower taxes part has very little evangelical valence.

Evangelicals do exist -- viz. Fred Clark of Slacktivist -- but I don't believe for a moment that they have any clout whatsoever.

"SH, since you apparently believe that "cruel and unusual" should be interpreted by late 18th-century standards, Im interested to hear whether you think that the 2nd amendment should also be interpreted by the standards of the day. That is, everyone is free to own a musket."

Nice strawman. I believe that if you are going to adopt an evolving societal standard of decency, you don't get to ignore what US society is actually saying on the topic. US society is noticeably for the death penalty, and has been since the founding. Support for the death penalty has tended to be in the 70%+ range. If you are invoking an evolving societal standard you don't get to ignore things like that. Marshall and Brennan had to twist and turn to avoid that and get to their preferred resolution. That is fundamentally against how the rule of law is supposed to function, and yet their arguments are widely accepted as valid Constitutional anti-death penalty arguments on the left. That is ridiculous.

jrudkis: The part I do not understand regarding this specific form of abortion is how the [woman]* is safer or healthier if the [fetus dies] after its head is already out of her.

I edited your question to make it look like an actual serious question, rather than a pro-lifer jibe.

Intact D&X is a method of late-term abortion in which the fetus, intact, has its skull punctured so that it collapses while its head is still inside the uterus, before it passes the cervix. The skull is the largest part of the fetus, and it is much safer for the woman to get the fetus past the cervix - which is artificially dilated, but not as dilated as it would get if the woman was actually about to give birth - if the skull has been collapsed prior to removing the head. Requiring a doctor to have a fetus removed intact so that it can die outsider the uterus may mean damaging the woman's cervix, perhaps permanently, which will mean she will be unable or it may be unsafe, for her to have more children later.

Understand now?

It's not the only late-term abortion procedure. But I had rather legislators did not tell doctors "You can't use that procedure because we think it's icky!" They have no other valid reason to object to it.

*For example, she may be a mother already: most women who have abortions do already have at least one child. But you can't assume she is, just because she needs a late-term abortion.

Brett: Do you discharge an obligation to do something, by forcing somebody else to do it? "Wait, honey, did you remember to feed the hungry today?" "No need, we voted to raise Bill Gate's tax rate, remember?"

Everybody pays taxes, Brett. It's one of those eternal truths. (Unless you're rich enough to be able to afford a fantastic tax lawyer, and have some method of buying things so you don't even pay sales tax.)

If you want to live in a country, you have the obligation to pay its taxes. If you don't like the way that nation taxes you, you are free to find some other nation where there are no taxes. Of course, there won't be any social infrastructure, either, but that's what you pay your taxes for. Libertarians who call this "forcing" and get mad about it tend to be perfectly happy to live with benefits of being taxed - they're just unhappy that they have to pay for what they get.

If you want to live in a country, you have the obligation to pay its taxes. If you don't like the way that nation taxes you, you are free to find some other nation where there are no taxes. Of course, there won't be any social infrastructure, either, but that's what you pay your taxes for. Libertarians who call this "forcing" and get mad about it tend to be perfectly happy to live with benefits of being taxed - they're just unhappy that they have to pay for what they get.

A libertarian's ideology requires him to believe that there's some way to individually opt-in to society, rather than have society be imposed upon one by fiat. Much of their theorizing is dedicated to finding some way to do this.

They're still working on it, but in the meantime, they like to bitch and moan.

Brett- I want to congratulate you on some very well deployed rhetoric. I used to find those arguments very convincing. That was before the last 6+ years of Republican rule though.

The problem as I see it is that either I vote for the Democrats and they spend tax money to help the poor, or I vote for Republicans who then steal the tax money and increase spending to make their rich crony friends richer.

If you don't like the way that nation taxes you, you are free to find some other nation where there are no taxes.

I'm fairly certain that in the country I live in, you have the right to petition the government to change the tax structure before you have to pack it all in and emigrate.

I'm fairly certain that in the country I live in, you have the right to petition the government to change the tax structure before you have to pack it all in and emigrate.

True. Or, just run for election and vote yourself and your family enormous tax rebates.

Or exercise some civil disobedience: Set your annual withholding to zero, don't pay your taxes, then sit in jail as a test case and martyr. I'm sure millions will flock to the jails for support.

Jes,

That situation is not covered by this law. The baby's head has to be out of the mother, or in the case of breach, the body past the navel. Is the problem that you have only in the case of a breach baby coming out, or is there some reason that once the head is already out, the baby has to be terminated for the health of the mother?

jrudkis: That situation is not covered by this law.

That situation is exactly what this law covers. What makes you think it isn't?

§1531(b)(1), as a procedure in which the doctor: “(A) deliberately and intentionally vaginally delivers a living fetus until, in the case of a head-first presentation, the entire fetal head is outside the [mother’s] body … , or, in the case of breech presentation, any part of the fetal trunk past the navel is outside the [mother’s] body … , for the purpose of performing an overt act that the person knows will kill the partially delivered living fetus”; and “(B) performs the overt act, other than completion of delivery, that kills the fetus.”


jrudkis: The [fetus]'s body past the navel

That is the procedure for ID&X, which is the procedure most commonly described by the non-medical term "partial-birth abortion", when the doctor performs the abortion by removing the fetus intact, puncturing the skull while the fetus's head is still inside the uterus, so that it can pass safely through the cervix without risking permanent damage to the woman's body. That is the procedure which this law is intended to ban, so that a doctor will be compelled by law to choose a less safe procedure when a woman needs a late-term abortion.

Sorry, jrudkis, we just cross-posted, but effectively my comment answers yours anyway - this law is intended to ban a procedure which is often the safest method of late-term abortion, in order to force doctors to choose a less-safe method.

(And - sorry for the triple-comment) it's a mystery why pro-lifers are rejoicing, if they want to be believed that they're all for saving fetal lives. Banning ID&X will not prevent any late-term abortions: it will merely ensure that doctors who treat women who need late-term abortions are forced to use procedures that are less safe for the woman. Rejoicing over this ban is rejoicing that more women will suffer and be made sterile and a few women will die.

Jes, Kennedy's op pretty expressly stated that the doctor could kill the, um, fetus first, and *then* vacuum its brains out or whatever.

I don't know what the issues are here -- presumably any poison injected into the baby might enter the woman's blood via the placenta -- but it seems that enterprising physicians could come up with something.

To quote Dahlia Lithwick in Slate:

But the best evidence I can offer for why neither the courts nor the Congress should be able to trump the mother's and doctor's preferences about the safest way to terminate her pregnancy is just this: After 120 minutes of exquisitely detailed medical inquiry, the justices have proven beyond a reasonable doubt that they just are not doctors. They have tried valiantly to understand the medical testimony and to analyze the protocols. They struggle to weigh the risks of lethally injecting a fetus in the uterus. But that's just not why they went to law school.
This isn't about any concern for the woman's health: this isn't about 'saving the fetuses': this is purely and simply about a bunch of non-doctors listening to a detailed description of a necessary medical procedure and going ick. In legal language.

No, it is about a bunch of justices deciding whether a law passed by representatives of the people and signed by the president in unconstitutional.

It may be bad policy, but we have a lot of bad policies that are constitutional.

No, it is about a bunch of justices deciding whether a law passed by representatives of the people and signed by the president in unconstitutional.

You know, the one does not contradict the other.

A law that puts US Congress in between a doctor and the doctor's patient, is unconstitutional: the patient has a legal right to privacy. Congress has no business there. The Court's argument wasn't based on any concern for the patient's welfare or her privacy.

It's also, of course, a profoundly unethical law, that forces doctors not to choose the safest method of late-term abortion for their patient.

jrudkis:

Jes is doing a better job of explaining the medical procedures than I am; this FAQ from Planned Parenthood is also informative.

What I want to know is, what do you think is going on in the minds of women and their doctors that necessitates legal intervention? Why isn't it enough to say, "many medical procedures are both horrific and necessary, and decisions about using them must be left to the patients & their doctors."

drat, here's the actual link.

Preview is your friend.

Jes,

If any and all procedures were available between a Doctor and patient then I would think it is a strong argument. However, Congress and government can regulate procedures, and does ban many. My brother in law just had to fly to Germany for a procedure that is banned in the US. Does that violate his right to privacy?

Doctor Science,

I think parents do a lot of things to their children that are bad, and I do generally think that it is better for government to stay out of the way, despite the harm. However, when something appears to me to be infanticide, I generally think that is bad enough to be banned. If I can understand how this procedure, after the baby has already been pushed out most of the way, somehow saves the mother, I am sure I can put it in the "hope this doesn't happen to me box," but not ban it. But I still fail to see how the mom is helped by the eliminating of the child after the head is already out. I will read the link you supplied, thanks.

jrudkis: If I can understand how this procedure, after the [fetus] has already been pushed out most of the way, somehow saves the [woman], I am sure I can put it in the "hope this doesn't happen to me box," but not ban it.

First, er, duh! I thought you were male: not that it makes a difference, but there you go.

To explain how this procedure saves the woman, you need to consider the normal width of the human cervix, and the normal width of a human skull. During labor, contractions of the uterus dilate the cervix up to 4 inches in diameter to allow the infant to pass through. In late-term abortion, without the assistance of the long contractions of the uterus, the cervix is artificially dilated - and it never reaches the width of dilation it will reach in labor. The skull is always the largest part of the fetus, and the most difficult part to pass through the cervix, even in normal labor. (If you've ever seen a newborn baby, really newborn, its head will look narrow and long due to the pressure, I understand, of the passage through the cervix.)

An abortion performed when the fetus is still so small it can pass through a cervix no more dilated than is normal in menstruation, is outside the scope of this law: fortunately, since that includes over 90% of abortions performed in the US.

But a doctor performing a late-term abortion has effectively two choices: to dismember the fetus inside the uterus, and bring it out in pieces, or to bring the fetus out whole. The latter is in general safer for the woman. The safest process is to remove the fetus from the uterus feet first, and then before the skull can pass through the cervix, with a high chance of damaging it, the doctor can puncture the skull and it will collapse, letting the head of the fetus pass through the cervix without damage. This is the procedure now banned by law.

A doctor who needs to perform a late-term abortion will now need to use one of the less safe methods. Because the definition of "partial birth abortion" is political, not medical, doctors may be left uncertain what method they can use, and opt - for their own safety from prosecution - for a means less safe for their patient.

Is that clearer now?

However, when something appears to me to be infanticide, I generally think that is bad enough to be banned

I can understand your feeling that you'd like to be reassurred, but what makes you think that doctors (and mothers) will be doing something that is actual infanticide *unless they had to*?

I put that last bit in because of my knowledge of medical history. Before Caesarians were feasible (late 1800s back to the beginning of time) midwives & doctors would occasionally be confronted with a laboring woman where the baby just wasn't going to come out. When that happened, they sometimes had to kill the baby and take it out in bits. (there's technical language to describe the various procedures, but that's what it boils down to.)

This was almost never called "infanticide", even though it basically was. There were various mental & legal workarounds so people didn't have to classify it as infanticide, but I think that most people with actual experience with birthin' babies recognized that it happened. And it was necessary -- as a rule in those situations, as in the present day when late-stage abortions are being considered, the baby was doomed anyway. The only practical question was, can we save the mother?

What makes you suppose that modern doctors & mothers do this except when they, too, think that their backs are to the wall? Why do you think that your feeling about whether something "appears" to be infanticide is more important than their knowledge of their actual life-and-death situation?

Jes --

Thank you for your very clear explanation. My personal experience (twice) is of full-term births, where the baby had already turned herself to go head-first (for those who haven't done this themselves, this turning normally happens only in the last few weeks before birth and is a *big* issue during the countdown period).

If you've ever seen a newborn baby, really newborn, its head will look narrow and long due to the pressure, I understand, of the passage through the cervix.

Newborns who were delivered by C-section are much nicer-looking than vaginal deliveries for this reason -- their soft little skulls can be squished in some pretty peculiar-looking ways, and vaginally-born newborns also tend to be red- or purple-faced from the pressure.

So then the issue is with the breach delivered babies, not those delivered head first? Had the law only banned the procedure on head first babies, would that eleviate the concerns?

Jrudkis, I'm uncertain why you are referring to "breach delivered babies" and "head first babies". The issue is about fetuses, and a procedure that can begin to be the safest method for abortions after the 17th week of gestation - intact dilation and extraction.

I'm not at all clear that you've understood that the issue is not whether or not the fetus will survive: whether or not a late-term abortion will be carried out: but what procedure will be used for a late term abortion. But those are the facts.

Can you explain why you would feel better about a late term abortion if the fetus is dismembered inside the uterus and brought out in pieces?

jrud --

One point I was trying to make is that there *are* no head-first abortions. The fetus doesn't turn to be head-down until it's just about show time, well after viability. If the fetus (or baby, if you prefer) is head-down (=head-first), then pretty much by definition the choices will be C-section or vaginal delivery, unless the fetus has clearly died already.

What makes you suppose that modern doctors & mothers do this except when they, too, think that their backs are to the wall? Why do you think that your feeling about whether something "appears" to be infanticide is more important than their knowledge of their actual life-and-death situation?

Because some people are nuts? Or confused? Or in a temporary panick? Or under enormous pressure of their environment? BTW: The fact that the judges aren't medically qualified and thus can't judge the medical procedure and implications is true of the mother too.

I am actually against the ban because every procedure should be available just in case. I must admit that I find the procedure rather gruesome, because with 20-24 weeks the part of the babies body that is outside is kicking and moving (I still remember how suprised I was that the babies moved like crazy during the delivery of my post-term babies). The idea that they than kill it with a stab to the brain is pretty gruesome to be honest, even if it is the best solution in some cases. I can see that it sometimes has though, and as I stated in an earlier thread: I think the US should be more lenient than for instance my own country.

In the Netherlands they let the women choose the method - Normal delivery has the advantage that you can mourn a 'normal' baby, which is why many parents choose that. But we don't abort past 21, 22 weeks.

I don't know wether ceasearean babies have a really different head. Mine were rather big, so their shoulders were more of a problem than their heads. But this is 10 minuts after the ceasearean, 20 minuts past a normal birth and 10 minutes after a normal birth.

At 20-24 weeks mine were not really settled either: they had enough room to swim and change positions.

The comments to this entry are closed.

Blog powered by Typepad