Ninth Circuit Partial Birth decision
As Howard helpfully pointed out, the Ninth Circuit came out with a unanimous decision today striking down the federal abortion law which outlawed partial birth abortions. Once again, taking the statute at face value means buying the proponent's phrasing, and therefore the premise: and as the court points out, there's no such animal as a partial birth abortion. The opinion itself prefers the term D&E (short for dilation and extraction), which comes in the varieties of intact and non-intact. The opinion goes into some detail on what is meant by the procedures, particularly in discussing whether the law is unconstitutionally vague and uncertain by failing to let doctors know what actions would be breaking the law.
Lyle over at SCOTUSblog gives a nice summary of the decision. I found the decision itself worth a read, although it does clock in at a sleek 64 pages.
[I notice even more abortion-related fireworks - Howard has the story as the Second Circuit also checks in. Their opinion apparently also finds the Partial Birth Abortion Ban to be unconstitutional, but doesn't address the remedy issue, which the Ninth Circuit decision does.]
That remedy issue is what was squarely confronted by the just-minted Supreme Court decision in Planned Parenthood v. Ayotte (the only thing, in fact, which was squarely confronted by that interestingly narrow unanimous opinion). Once the Ninth Circuit found that the PBAB was unconstitutional for three independent reasons (no health exception, too vague, and creates an undue burden), it had to decide, as per Ayotte, whether to strike down the law entirely or whether some narrower relief might be possible.
This led the court into a fascinating discussion of which Congress would have preferred: no law at all, or the law with a health-of-the-mother exception engrafted. Due, among other things, to a quite complete legislative record, including votes to defeat amendments to achieve exactly that, the Court determined that no remedy would do other than declaring the entire law unconstitutional.
Another feature of the decision I found pretty fascinating was the question whether deference to Congress was warranted. Congressional sponsors attempted to overrule prior Supreme Court rulings which required a health exception by placing a Congressional Finding in the law, stating that there existed a medical consensus that there was no circumstance under which medical necessity required the procedure being outlawed. A big statement, and not in fact uncontrovertibly true, but supporters of the law argued in court that the finding should be accorded deference; if that were so, the Court shouldn't go behind it to determine if it was, you know, true.
The Ninth Circuit's opinion declares this a red herring, and labels the key inquiry whether or not there is in fact a medical consensus that the procedure is ever medically necessary. Since Congress was arguing their conclusion, rather than accurately summarizing the state of medical consensus (or lack thereof), the court declined to defer to an objectively unreasonable finding.
It seems that once again, the sponsors' insistence on removing any health exception (because, in their view, any such exception would be broadened indefinitely by providers and advocates) has sunk any chances of this ban being declared legal.
Also interesting in the opinion: the Ninth Circuit identifies the phrase "living fetus" (as opposed to "viable fetus") as another feature that makes the law unacceptably broad, as encompassing and therefore outlawing a far greater number of abortions than the supporters of the Bill originally claimed. I wonder, was the phrase included for dramatic purposes?
Lyle over at SCOTUSblog gives a nice summary of the decision. I found the decision itself worth a read, although it does clock in at a sleek 64 pages.
[I notice even more abortion-related fireworks - Howard has the story as the Second Circuit also checks in. Their opinion apparently also finds the Partial Birth Abortion Ban to be unconstitutional, but doesn't address the remedy issue, which the Ninth Circuit decision does.]
That remedy issue is what was squarely confronted by the just-minted Supreme Court decision in Planned Parenthood v. Ayotte (the only thing, in fact, which was squarely confronted by that interestingly narrow unanimous opinion). Once the Ninth Circuit found that the PBAB was unconstitutional for three independent reasons (no health exception, too vague, and creates an undue burden), it had to decide, as per Ayotte, whether to strike down the law entirely or whether some narrower relief might be possible.
This led the court into a fascinating discussion of which Congress would have preferred: no law at all, or the law with a health-of-the-mother exception engrafted. Due, among other things, to a quite complete legislative record, including votes to defeat amendments to achieve exactly that, the Court determined that no remedy would do other than declaring the entire law unconstitutional.
Another feature of the decision I found pretty fascinating was the question whether deference to Congress was warranted. Congressional sponsors attempted to overrule prior Supreme Court rulings which required a health exception by placing a Congressional Finding in the law, stating that there existed a medical consensus that there was no circumstance under which medical necessity required the procedure being outlawed. A big statement, and not in fact uncontrovertibly true, but supporters of the law argued in court that the finding should be accorded deference; if that were so, the Court shouldn't go behind it to determine if it was, you know, true.
The Ninth Circuit's opinion declares this a red herring, and labels the key inquiry whether or not there is in fact a medical consensus that the procedure is ever medically necessary. Since Congress was arguing their conclusion, rather than accurately summarizing the state of medical consensus (or lack thereof), the court declined to defer to an objectively unreasonable finding.
It seems that once again, the sponsors' insistence on removing any health exception (because, in their view, any such exception would be broadened indefinitely by providers and advocates) has sunk any chances of this ban being declared legal.
Also interesting in the opinion: the Ninth Circuit identifies the phrase "living fetus" (as opposed to "viable fetus") as another feature that makes the law unacceptably broad, as encompassing and therefore outlawing a far greater number of abortions than the supporters of the Bill originally claimed. I wonder, was the phrase included for dramatic purposes?