Tuesday, February 21, 2006

Big Test for the New Court

Welcome to the Supreme Court, Justices Roberts and Alito, let's see what you're made of...
Justices to Weigh Late-Term Abortion Ban
By GINA HOLLAND, Associated Press Writer - 7 minutes ago
WASHINGTON - The Supreme Court said Tuesday it will consider the constitutionality of banning a type of late-term abortion, teeing up a contentious issue for a newly-constituted court already in a state of flux over privacy rights.

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

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

But Justice Sandra Day O'Connor, who was the tie-breaking vote, retired late last month and was replaced by Samuel Alito.

[...] The federal Partial-Birth Abortion Ban Act prohibits a certain type of abortion, generally carried out in the second or third trimester, in which a fetus is partially removed from the womb, and the skull is punctured or crushed.

Justices on a 9-0 vote in a New Hampshire case reaffirmed in January that states can require parental involvement in abortion decisions and that state restrictions must have an exception to protect the mother's health.

The federal law in the current case has no health exception, but defenders maintain that the procedure is never medically necessary to protect a woman's health.

Right, I'm sure women are undergoing that procedure for the fun or convenience factor. I'm sure medical personel line up for that one too. Sounds like a real fucking picnic for all parties.
Even with O'Connor's retirement, there are five votes to uphold Roe, the landmark ruling that established a woman's right to an abortion.

[...] Bush has called the so-called partial birth abortion an "abhorrent practice," and his Supreme Court lawyer, Solicitor General Paul Clement, had urged justices not to delay taking up the administration's appeal.

The case that will be heard this fall comes to the Supreme Court from Nebraska, where the federal law was challenged on behalf of physicians. Doctors who perform the procedure contend that it is the safest method of abortion when the mother's health is threatened by heart disease, high blood pressure or cancer.

Yeah, what do the doctors know? Better to let grandstanding politicians or sign-waving lunatics make that medical decision... I will go as far as agreeing that this sounds like an "abhorrent" procedure, which is exactly why it is rare and only done when necessary. But there is no need for legislation impacting this, and certainly not legislation that omits a health exception. I suspect even the newly installed justices will agree. I don't doubt for a minute that a better crafted law containing an exception will eventually pass muster, hopefully this one won't. In fact, I'll go so far as to say this legislation is designed to fail and serve as a rallying point against "activist judges" and a society out of control.

Fortunately or unfortunately, I'm not sure which, this will play out just in time for the elections this fall. This is a massive wedge, and that's why Bush is pushing this. I feel like this "partial-birth" battle takes place on their territory and plays in the pro-life movement's favor. They can over-dramatically portray it as a horrible procedure that needs reigning in, yet it still falls waay short of overturning Roe, which would be an equivilent, if not superior, GOTV motivator for the pro-choice side.

So, the Court taking this now, is likely to be bad news, even if they come to the right decision.

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