Judge Casey’s ruling in last week’s “partial-birth” ban case is now online (pdf file).
Although the ruling is a victory for the pro-choice side – as I wrote before, if the pro-lifers can’t win this case in Judge Casey’s court, they probably can’t win it anywhere – Casey also steered testimony to emphasize the alleged cruelty and the undisputed grossness of the D&X procedure. By doing that, he created a trial record that will be useful to any future Supreme Court that wants to overturn Stenberg. (Stenberg is the Supreme Court decision which ruled that PBA bans that are overbroad, or that lack an exemption to protect the woman’s health, are unconstitutional).
Judge Casey, who didn’t hide his disgust at the D&X abortion procedure, ruled against the PBA ban based on a single issue, the lack of a health exemption:
As a court of law, ours is neither to devise ways in which to circumvent the opinions of the Supreme court nor to indulge delay in the full implementation of the Court’s opinions. Rather, our responsibility is to follow faithfully its opinions, because that court is, by constitutional design, vested with the ultimate authority to interpret the Constitution.
Congress shares that same responsibility.
The Supreme Court in Stenberg informed us that this gruesome procedure may be outlawed only if there exists a medical consensus that there is no circumstance in which any women could potentially benefit from it. A division of medical opinion exits, according to Stenberg, according to this Court, and even according to the testimony on which Congress relied in passing this law. Such a division means that the Constitution requires a health exception.
Stenberg obligates this Court and Congress to defer to the expressed medical opinion of a significant body of medical authority. While medical science and ideology are no more happy companions than Roe and its progeny have shown law and ideology to be, Stenberg remains the law of the land. Therefore, the Act is unconstitutional.
The pro-lifers in Congress had attempted to get around Stenberg with a duplicitous “finding of fact” that “partial-birth” abortions are never necessary. Judge Casey dismissed Congress’ findings, quoting the same Clarence Thomas argument that I quoted months ago.
Although Judge Casey was not required to rule on the other legal issues in this case – if the PBA ban creates an undue burden on women, and if the definition of PBAs in the ban is overly broad – he could have if he wanted to. By not addressing the overbroadness issue, Casey was able to turn the trial into a show trial against the D&X abortion procedure – even though it’s not clear that the D&X procedure is what the PBA ban actually bans. (The court in California ruled that the definition was both too broad and too vague.) If a future Supreme Court overturns Stenberg, I expect they’ll do it drawing heavily on the testimony Casey brought forth in this trial..
This is all getting very confusing. It doesn’t do any good to prove that abortion procedures aren’t necessary? Merely claiming that such procedures were necessary sure went a long way for pro-choicers. Although I would fear that a health clause would result in doctors labeling this or that as medically necessary, I do think that a ban (on PBA and possibly all abortions bar matters of rape or incest) with a health clause for the mother’s protection is quite a bit closer to public sentiment than an anything-goes policy.
They didn’t prove that it wasn’t necessary.
Although I would fear that a health clause would result in doctors labeling this or that as medically necessary…
Who do you think is better qualified than doctors to judge what’s medically necessary?
As for “public sentiment,” I think there’s a strong public sentiment in favor of letting women make their own choices in most circumstances, even when that choice isn’t one everyone agrees with.
More importantly, I don’t think that basic civil rights should be subject to public sentiment.
Thanks, Amp, for saying everything in response to Jen that I tried to (but didn’t post for lack of a nice way to put it)>
Sorry, it seemed to me that it was saying that even trying to prove it was not an option. I said it was confusing.
Also, I agree that doctors would best qualified to make such decisions; however, I’m not sure that they couldn’t be bought. That’s not to say that they could be either. Saying things like “I would fear” and “I do think” tend to be me letting you know that I’m not speaking for everyone; therefore, knickers can dewad. Also, also, my comment on public sentiment was an observation. Your observation is different. I can respect that without resorting to “even when that choice isn’t one everyone agrees with” finger-pointing.
I’m sorry you read finger-pointing into the staement, Jen, but you’re mistaken; I wasn’t pointing any fingers. My point is that I think most of the American public would agree that people should have the right to make decisions even when those decisions would not necessarily meet with public approval.
More broadly speaking, though, I actually doubt the majority of the American public has a really coherant position on abortion (either pro-choice or pro-life). I think most people see some good points on both sides, and will respond to surveys differently depending on how the questions are phrased.
So I think most Americans would probably agree with a statement like “abortion should be outlawed except when necessary due to reasons of extreme poverty, rape, incest, or health.” But at the same time, most Americans would probably also agree that “the abortion decision is best made by an individual woman in consultation with her doctor and her conscience, rather than made by the government.” That the two positions are totally contrary doesn’t prevent people from favoring them both.
A very typical American “position” on this issue:
No abortion, with these three exceptions: Rape, Incest, and Me.
More broadly speaking, though, I actually doubt the majority of the American public has a really coherant position on abortion (either pro-choice or pro-life). I think most people see some good points on both sides, and will respond to surveys differently depending on how the questions are phrased.
So I think most Americans would probably agree with a statement like “abortion should be outlawed except when necessary due to reasons of extreme poverty, rape, incest, or health.” But at the same time, most Americans would probably also agree that “the abortion decision is best made by an individual woman in consultation with her doctor and her conscience, rather than made by the government.” That the two positions are totally contrary doesn’t prevent people from favoring them both.
I think this is basically right, but also that it’s not so much a matter of actual incoherence as that most people just haven’t really thought their position through sufficiently to be able to articulate it clearly or respond to polling questions in a way that is completely consistent.
We wonkish people tend to forget that most Americans really don’t spend much time thinking about abortion as a policy issue, or thinking much about anything as a policy issue, except perhaps in the run up to an election or when they’re about to enter the voting booth, and even then not too much. Most people are too preoccupied with work and family and their home and whatever else to really worry about these things.