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Supreme Court Grants Cert in Partial-Birth Abortion Case:
Howard has the breaking news here. As Lyle Denniston notes, the case probably will be argued in the fall.
SimonD (www):
But no opinions this morning?

In any instance, this is sure to be more contentious than it ought. For reasons given here, I remain sceptical of the constitutionality of this law, and for reasons given here, I hope that Our Hero shares that view.
2.21.2006 10:25am
J..:
Five orders (two on argued cases) released today. In addition to SCOTUSBlog, Howard lists them.
2.21.2006 10:52am
SimonD (www):
J. - that's what I get for checking the court's own website rather than Howard. ;)
2.21.2006 10:59am
TC (mail):
As one who opposes Roe v. Wade in part on federalism grounds, this is a toughie.

I think that the American people should decide how abortion is handled; and I believe that, under our federal system (or the one that once existed), the states should decide the legality of abortion.

So, what to think of a federal partial-birth abortion ban...?
2.21.2006 11:06am
Steve:
The issue here relates less to abortion and more to the division of powers between the legislature and the judiciary. Can the legislature bring in experts who testify as to one side of a disputed factual issue, legislatively declare that side of the issue to be unquestionably correct, and thus evade review via the judicial factfinding process?
2.21.2006 11:09am
TC (mail):
And now, after reading the links SimonD provided, I see I'm not the only one.
2.21.2006 11:09am
Taimyoboi:
"In other words, could the Court have attempted to influence the politics of the confirmation battle by postponing the grant of review in this case until today?"

I found this tidbit interesting, although I wish he would have added some additional thoughts to the claim.
2.21.2006 11:14am
Legal Thoughts (mail):
The common wisdom in D.C. is that the Court should take cases, like Carhart, where a lower court has declared a federal statute invalid. I think that it's worth questioning that wisdom in a situation like this one, where the lowers courts have ALL struck down the law because it is quite clearly inconsistent with extant Supreme Court precedent. I say all of this with no particular love of Stenberg v. Carhart but with the grave reservations as to the effect on the Court's legitimacy if, six years after Stenberg, the decision is overruled.

Recall Scalia's dissent in Lawrence v. Texas, where he railed against the majority for overturning a precedent that was only 18 years old. Doesn't the same concern apply a fortiori to Stenberg? The only temporally analogous example that occurs to me was Adarand (1995), which overruled the Court's strange holding in Metro Broadcasting (1990) that strict scrutiny did not apply to affirmative action programs undertaken by the federal government under the Fifth Amendment. Perhaps other commentators can provide other examples.

Also, for some the reasons identified by Simon, it is not at all clear that the federal ban is constitutional even if Stenberg is overruled. Is the Court going to send the cases back to the lower courts for consideration of potential Commerce Clause challenges?
2.21.2006 11:32am
Medis:
Legal Thoughts,

One less disruptive possibility would be that the Supreme Court could decided whether the cases should be remanded for further consideration of a remedy in the style of Ayotte (which I believe would actually be affirming the Second Circuit). I do think the Ninth got this issue right, at least insofar as Congress clearly intended to not include a health exception, but this would at least be a "new", post-Stenberg, question.
2.21.2006 11:50am
Just an Observer:
For all the concern expressed in such quarters as this about the whether the federal PBA ban might be unconstitutional on federalism grounds, has that issue even been raised by the parties in the cases?

I don't recall reading about it in that context, but I could be mistaken.
2.21.2006 11:57am
WB:
Any speculation as to how this will play out?

Is this going to be a narrow ruling that potentially only either chips away a tiny piece of Roe v. Wade or just reaffirms the Stenberg v. Carhart case...?

Or is this going to be the case that either tears out the Court's abortion jurisprudence by the roots or cements it more firmly as a body of "super-duper precedent?"

Or something in between?
2.21.2006 12:05pm
Paul Sherman:
Is "partial abortion" where they just rough the fetus up a little bit?
2.21.2006 12:06pm
Medis:
WB,

It seems to me that the continued presence of Justice Kennedy will likely limit the decision to your more narrow range (and where Justice Kennedy will come out is not clear to me). Again, as an alternative, something along the lines of Ayotte could be considered.

Of course, if Roberts and/or Alito sign onto an opinion that clearly restates the central holding of Casey, that would be big news in the broader sense, since it would imply the vote count for Casey was still at least 6-3, despite SDO's retirement during a Republican Administration. Conversely, if they both sign onto an opinion that clearly states Casey should be overruled, then it would also be somewhat-less-big news, in the sense that the vote count would have moved down to 5-4.
2.21.2006 12:18pm
M.A. (mail):
Scalia is deeply hackish on issues like this (as he was on the marijuana issue in Raich). He'll uphold the ban just because he likes abortion restrictions, period.

What bugs me the most about the exclusion of the health exception from these laws is the sheer paranoia right-wingers have about doctors who perform abortions -- as if they're all Nazi killers who want to pick the most gruesome abortion procedure just for fun, even if it's not necessary for the mother's health. What a joke. The abortion providers I've known have done more good for women than George W. Bush has done in his entire miserable life. And yet it's the "abortionists" who need to be stopped from doing their jobs to protect women's health.
2.21.2006 12:18pm
M.A. (mail):
Oh, and the other thing: the fake name "partial-birth abortion" was a real masterstroke on the part of the pro-life (but anti-health) movement. When I first heard the term, I assumed it referred to killing a baby after it's partially ready to be delivered naturally (that is, in the eighth or ninth month). Of course I was in favor of banning that and assumed it could never be necessary to protect a woman's health. Once I found out how broad and vague the term actually was, and that it referred not to actual birth but simply to forcing a fetus into a birth-esque position, my support for an anti-health ban went down considerably. I suspect that the public support for "partial-birth" bans comes in large part from that misleading term, "partial-birth."
2.21.2006 12:33pm
Brett Bellmore (mail):
You could probably have more trust in abortion providers, if the Court hadn't ruled their decisions beyond any review. Members of Congress are well aware of how abusive THEY would get if their actions were unreviewable, why should they expect doctors to act responsibly in a similar situation?

And with doctors declaring abortions "medically" necessary for psychological reasons, essentially raising being upset over not getting an abortion to the level of a medical crisis, there's reason to doubt the concept of medical "necessity".
2.21.2006 12:34pm
Unnamed Co-Conspirator:
M.A., the doctors you're referring to don't kill Nazis, they kill babies.
2.21.2006 12:35pm
M.A. (mail):
M.A., the doctors you're referring to don't kill Nazis, they kill babies.


My point exactly: support for these crazy restrictions is based on the assumption that these doctors are "baby-killers," when in fact they are providing a necessary service for women's health and have done more good in their lives than you ever will.
2.21.2006 12:40pm
Steve:
For all the concern expressed in such quarters as this about the whether the federal PBA ban might be unconstitutional on federalism grounds, has that issue even been raised by the parties in the cases?

The issue has not been raised at all, which I tend to take as a concession by those challenging the statute that Lopez and Raich simply aren't likely to be extended to the abortion field.

The statute provides that it only applies to abortions performed in or affecting interstate commerce, although it's not clear if that really represents a substantial limitation on the statute's scope. For example, if you prevent the abortion, perhaps the result will be an infant who eats baby food which moves in interstate commerce.
2.21.2006 12:45pm
Nobody Special:
It's so crazy, M.A., I don't know how humanity managed to survive for 35,000+ years without partial birth abortion...
2.21.2006 12:48pm
Steve:
Surely someone who makes a comment like that can't believe humanity has been around longer than 6,000 years.
2.21.2006 1:00pm
Chico's Bail Bonds (mail):
It's so crazy, M.A., I don't know how humanity managed to survive for 35,000+ years without partial birth abortion...

Yeah, M.A. And cavemen got along just fine without applying intermediate scrutiny to gender discrimination.
2.21.2006 1:00pm
M.A. (mail):
Scott LeMieux had the best post on how this decision is likely to go and what effects it's likely to have (the arbitrary criminalization of random procedures basically renders Roe near-meaningless).

It's so crazy, M.A., I don't know how humanity managed to survive for 35,000+ years without partial birth abortion...


Humanity managed to survive all kinds of crappy things. However, the point is that pregnancy is a health risk; there are abortion procedures that are safe for preventing harm to women's health; and the point of most of these laws is to use the power of the State to criminalize doctors for trying to use a safe method for preserving women's health. Plus the added bonus of making abortions less available for poor women (while ensuring that there will always be abortion on demand for the wealthy, as there always was before
Roe).

Heck of a crowd you hang out with.
2.21.2006 1:06pm
SimonD (www):
Legal Thoughts,
I don't think Scalia's main complaint in Lawrence was the majority's overturning of Bowers, but rather, the absurd inconsistency of essentially the same majority which preached stare decisis in Casey (vis-a-vis Roe) turning around and ignoring it in Lawrence vis-a-vis Bowers.

However, even with that having been said, I just don't think Stenberg v. Carhart has anything to do with this case. Stenberg answered the question "can a state ban partial birth abortion"; but whatever the answer to that question might be, it has no bearing on the entirely separate question of whether the Federal government can ban partial birth abortion. The fact that Stenberg v. Carhart is even being discussed just seems to my mind to be dodging the single most salient point at issue here, which is the authority of Congress to enact the statute in the first place, not questions about its practical detail.

This is a perfect example of what I was saying a couple of weeks ago: I don't like the conclusion that Congress can't ban "this visibly brutal means of eliminating our half-born posterity," but I'm not sure what other conclusion is available. I mean, I suppose that if I were a living documentarian, it's fairly obvious that one has to be born to participate in interstate commerce, so it's pretty easy to see why one might think that the law is okay if one buys into the modern, expansive commerce clause argument. Last time I checked, we Federalist types didn't buy that argument, though. Or perhaps we could find a right to life in the Due Process clause - you have to be born to participate in liberty, "active liberty" or otherwise, but I thought we didn't buy into that argument either (insert Ninth Amendment parenthetical for Randy Barnett fans). Oh, but surely a fœtus is a person, so it can be protected under the Fourteenth Amendment, right? Well, I thought we originalists believed that the Constitution means what it meant when it was adopted. Was a fœtus considered a person in 1868?

It's sometimes a distressing feeling to discover that the Constitution doesn't solve every problem, no matter how hard you might wish for it. It's so much easier to just go looking for something to peg unenumerated rights on, to give yourself some lattitude. You can see why so many people, on the right and the left, are so keen to do so.
2.21.2006 1:20pm
Rob Johnson (mail):
SimonD beat me to the punch in responding to Legal Thoughts. Scalia's dissent in Lawrence didn't say the Court shouldn't overturn precedent, it simply pointed out Kennedy's, Souter's, and Oconnor's hypocrisy in selectively preaching stare decisis.
2.21.2006 1:29pm
SimonD (www):
MA:
Scalia is deeply hackish on issues like this (as he was on the marijuana issue in Raich). He'll uphold the ban just because he likes abortion restrictions, period.
If he does, I would suggest that it is for the reason that Steve raised, ante. If Scalia wants an easy out, he can just say "well, the Federalism issue isn't raised by the parties, so we shouldn't invalidate a law on an issue neither argued nor briefed, we shouldn't just bring it up sua sponte."

Now, that's a cheap getout. Our Hero has been unambiguous in the past:
[I]f a state were to permit abortion on demand, I would and could in good conscience vote against an attempt to invalidate that law, for the same reason that I vote against invalidation of laws that contradict Roe v. Wade; namely, simply because the Constitution gives the federal government and, hence, me no power over the matter.
Now, don't get me wrong: if he does disappoint, and puts forth a fairly crummy excuse for dodging this bullet, I'll be disappointed, but I don't intend to start writing iconoclastic papers about how terrible it is that Scalia does this, that or the other, or start declaring that there is now only one originalist on the Supreme Court. It'll just be disappointing. Sometimes, Justice Scalia - in my exceedingly humble opinion - gets it wrong.
2.21.2006 1:29pm
KeithK (mail):
In my dream world the court would issue a ruling that pisses off conservatives by declaring the PBA ban unconstitutional and pisses off liberals (well, big government types from both sides) by basing it on a sweeping limitation of Commerce Clause power. But unfortunately we live in the waking world.
2.21.2006 1:42pm
Nobody (mail):
Has anyone here actually read the law in question? The key language of the statute reads:

"Any physician who, in or affecting interstate or foreign commerce, knowingly performs a partial-birth abortion and thereby kills a human fetus shall be fined under this title or imprisoned not more than 2 years, or both." (emphasis added)

This type of "express jurisdictional element" was approved in Lopez. It's hard to see how this law would exceed Congress's commerce clause power, when it applies only to physicians who are acting in interstate commerce.

Which is not to say that the law is constitutional. It clearly violates womens' fundamental right to privacy, and its enforcement should be enjoined as such. But get a grip people--there's no commerce clause issue here.

(If you want to read the full text of the statute, it's linked on nytimes.com.)
2.21.2006 1:42pm
Defending the Indefensible:
"Any physician who, in or affecting interstate or foreign commerce,"

Silly invocation. Should be regarded as meaningless, though I know Alito seemed to be partial to such language in his hearings.
2.21.2006 1:46pm
Defending the Indefensible:
OT, waiting for discussion of UDV....
2.21.2006 1:47pm
Miguel (mail):
M.A. - Do you even know what partial birth abortion is? I challenge you to say how it can be necessitated for medical reasons? The grounds that "legitimate" the murder\dismemberment of the mostly born child, is that there is still a body part remaining in the mother. This is barbaric and should be outlawed, all federalism concerns aside. In a similar vein, should slavery have been limited to just a state issue as some of the posters argue with the abortion issue? With slavery, men were already fully born ....
2.21.2006 1:48pm
Medis:
SimonD,

More or less as an aside, I wonder if the state-federal distinction might also make a difference for Justice Kennedy (in addition, of course, to the stare decisis issues).
2.21.2006 1:50pm
David M. Nieporent (www):
If Scalia wants an easy out, he can just say "well, the Federalism issue isn't raised by the parties, so we shouldn't invalidate a law on an issue neither argued nor briefed, we shouldn't just bring it up sua sponte."

Now, that's a cheap getout.
It leads to disappointment, but it's the right approach. I predict Thomas will take it also.

M.A., how about some intellectual honesty? Regardless of what one thinks about the constitutional or policy issues here, abortion in the U.S. has virtually nothing to do with "women's health." It has to do with careers, education, economics. The percent of abortions performed for health reasons is in the low single digits. (The percentage is presumably higher for PBAs, but the doctor who testified before Congress that PBA is a rare procedure used only for life-threatening situations admitted later that this was not the case.)
2.21.2006 1:51pm
Nobody (mail):
DtI, I'm not familiar with the canon of constitutional review that empowers a federal court to ignore operative verbiage in an act of congress on the basis of silliness. Is that a corrolary of rational basis review?
2.21.2006 1:51pm
Defending the Indefensible:
Nobody,

You have a valid point, however when Congress seeks to extend its power merely by recitation of magical incantations of the form seen here, it should not be deemed effective.
2.21.2006 1:58pm
mr littlejeans (mail):
Forgive me as I'm not a lawyer. But, would the existence of people affect interstate commerce?

If there were no people, obviously there wouldn't be any interstate commerce. Would the fact that a federal law affected the number of people in a market, thus affecting the size of that market, give it legitimacy under the commerce clause.

As an aside, assuming the market in the US is lower by about 30 million people since Roe was decided (just a guess), would Congress (absent the right to privacy reasoning in Roe) have commerce clause grounds to ban abortion?
2.21.2006 2:00pm
Nobody (mail):
DtI, it's not an incantation, it's a limitation on the scope of the prohibition. How else could it be read?
2.21.2006 2:01pm
Daniel Chapman (mail):
It's not a limitation, and it's not intended to be... it's a formality.
2.21.2006 2:15pm
Scott W. Somerville (mail) (www):
As a true-believing federalist, I'd rely on the "all persons born" language (Amend. XIV, section 1) and "appropriate legislation" language in section 5 as grounds for the Partial Birth Abortion ban. If PART of a living being is delivered, Congress can assert constitutional authority to protect the part that made it into American air.

It's sort of a "Merchant of Venice" situation. "You are free to kill the unborn part of this fetus as long as the American citizen part of it stays alive and healthy."

I would agree that the Interstate Commerce Clause is a terrible basis for any pro-life legislation.
2.21.2006 2:15pm
SimonD (www):
Medis,
I'm not sure where Kennedy will go on this one. While on the one hand, he is clearly viscerally opposed to partial-birth abortion (note his stung tone while reading his Stenberg dissent from the bench - an un-Kennedylike step if there ever was one - which suggested he was finally grasping where he had been led by the nose in Casey), on the other hand, he is as strong an advocate of the new federalism as any of them, and his position in Raich, I suspect, was genuinely driven by the subject at hand (drugs), rather than any change in heart over Federalism. Plus, Kennedy is as happy as any of the Court to write in grand[iloquent], sweeping statements. Given David's point ante, it's possible that Scalia and Thomas will take the easy out - so I wonder if what we're going to see is a 4-1-4? What if the court strikes down the law with Stevens, Breyer, Ginsburg and Souter voting to strike on the same grounds as the Ninth Circuit, and Kennedy writing a separate concurrence, also voting to strike the law down on Federalism grounds?

In any instance, what I would like to see is a unanimous vote to strike down the law, with the only division being over WHY it should be struck down.

assuming the market in the US is lower by about 30 million people since Roe was decided (just a guess), would Congress (absent the right to privacy reasoning in Roe) have commerce clause grounds to ban abortion?
Not unless you're one of these terrible "originalists" who want to give the commerce clause power the meaning it was understood to have when ratified...

(Since I am one, that was sarcasm).
2.21.2006 2:18pm
Nobody (mail):
Daniel Chapman, I agree that it's a formality. I just don't see how, with that formality in place, the law can be facially challenged as exceeding the commerce clause power. I would think that doctors challenging the law would have to do so on an "as applied" basis.
2.21.2006 2:24pm
PersonFromPorlock:
Does Kelo have an application here? After all, if maximizing tax income is, in itself, a legitimate function of government then terminating future taxpayers as fetuses (feti?) certainly seems like an interference which government -- state or federal -- has an interest in preventing. ;^)
2.21.2006 2:29pm
Just an Observer:
First, where I am coming from: I am pro-life, believe Roe v Wade was wrongly decided, and hope the court does readdress that precedent someday. I am not at all sure that it will, or whether it will even reopen the holdings of Casey, despite the presence of Roberts and Alito (whose confirmations I supported). Although abortion is not the only legal issue about which I care, I seriously wish it were left up to legislatures. I am not certain where I stand on the federalism implications of this particular law.

Having said that, I have a hard time getting excited about the any PBA ban, which is mostly political theater and useful for grass-roots campaigning. The fact is that no such ban, at either the state or federal level, will prevent a single abortion.

These laws are interesting to me legally if their consideration somehow will contribute to a process that whittles away at judicially defined abortion rights. In that context, especially after the Ayotte decision, I really am not sure what to expect from the Carhart case. But I don't see it as the watershed case that some others seem to think it is. We could see another modest, narrow ruling.
2.21.2006 2:31pm
Hans Bader (mail):
Two points:

I. The Supreme Court's past decision preventing regulation of partial-birth abortion was grossly inconsistent with the logic of its prior and subsequent decisions involving other constitutionally protected liberty interests, including interests that are (unlike abortion) expressly mentioned in the Constitution itself.

It is deeply ironic that the Court was willing to defer to a respectable minority of the medical profession in finding that partial birth abortion was necessary, and thus protected, in Stenberg v. Carhart, yet was unwilling to defer to a respectable, and substantial, minority of the medical profession as to the usefulness of medical pot in preserving a sick person's life in the Gonzales v. Raich case. Deference to medical judgments should surely be at least as great when they involve preserving a sick person's life (as in Raich) as when they involve taking life (as in Carhart).

The due process clause mentions "life," but it doesn't mention abortion. Why should abortion be given more protection than a sick person's life? Yet that is what the Supreme Court has effectively done.

In their ruling on the federal partial-birth abortion ban, the Second Circuit judges, in concurrence and dissent, point out many of the ways that the Supreme Court's partial-birth abortion ruling defied logic and well-established principles of constitutional law.

II. In partial-birth abortion cases, courts require a showing that the regulation contain an exception for any case in which it would affect someone's mental or emotional health. This makes little sense. All regulations affect somebody's emotional or mental health.

I once counseled rent-control landlords, and let me tell you, they experienced great psychic distress as a result of burdensome rent control regulations and their inability to live in the very property they nominally "owned."

They had a property right, protected by the express language of the due process clause (unlike abortion), and the regulation of their property rights harmed their emotional health, yet they got no exemption from the regulation. This is because case law says that property rights are not absolute.

So why should someone get an exemption from a ban on partial-birth abortion, just because it would affect them emotionally? Why should abortion rights be more absolute than property rights, which are expressly protected in the constitution itself? Are they "super" rights?

I'm not necessarily opposed to abortion rights. I don't think early-term abortions should be banned.

But I am opposed to turning abortion rights into super-rights, as the Supreme Court's 5-to-4 decision in Stenberg v. Carhart seems to have done.
2.21.2006 2:50pm
Mr Diablo:
We do have one decision in the wake of Ayotte on the case in general. The Ninth Circuit's opinion declaring the law unconstitutional because of the lack of a health of the mother exception was pretty scathing about the Court's order that they needed to save some part of the late-term abortion ban.

Noting that in its deliberations, Congress had SEVERAL TIMES, rejected efforts to attach a health of the mother exception to the law, the Ninth Circuit said that it would amount to legislating from the bench in order for them to draw up a health exception that would fix the law, and that because of the complexity of the political process that was involved in the crafting of the law in question, they had no business trying to amend laws that were unconstitutional. It was pretty clever for those crazy 9th Circuit fellows, and a refreshing rebuke of the back-door bench legislating that conservatives hypocritically loved when the Ayotte decision came down.

I wonder what Justice Kennedy will do now that he does not have someone to flip a coin with to decide who will infuriate the right this week.
2.21.2006 2:57pm
KMAJ (mail):
Here's a different angle of analysis. We all assign votes according to perceptions of past votes, but how much influence can a justice provide during post argument discussion. If one assumes all justices are cemented in their positions and cannot be persuaded by legal argument of the others, then the analysis might be correct. On the other hand, if one of the justices is superior in presenting legal support for his position, which judges might be persuaded ? I think this is the ultimate influence of Roberts on this court, his experience and success arguing before the Supreme Court may provide an 'X' factor in all analysis. If one garnered nothing else in the Roberts confirmation hearings, the man is smooth, unflappable, persuasive and holds an excellent grasp on constitutional law. Can he pull Kennedy to the right ? Can he pull any of the others ?
2.21.2006 3:17pm
MDJD2B (mail):
Has anyone here actually read the law in question? The key language of the statute reads:

"Any physician who, in or affecting interstate or foreign commerce, knowingly performs a partial-birth abortion and thereby kills a human fetus shall be fined under this title or imprisoned not more than 2 years, or both." (emphasis added)


This language is too vague to inform a physician whether his PBA is violating the statute. It seems to me invalid on the basis of the ex post facto clause.
2.21.2006 3:23pm
MDJD2B (mail):
...yet was unwilling to defer to a respectable, and substantial, minority of the medical profession as to the usefulness of medical pot in preserving a sick person's life in the Gonzales v. Raich case.

Nobody ever contended that medical marijuana preserved life. The contention was that it relieved pain.
2.21.2006 3:25pm
Medis:
Mr. Diablo,

I am a little confused by your analysis of the Ninth Circuit case. They were not subject to the Court's order in Ayotte, which dealt with a New Hampshire statute, not the federal statute. And the Ninth took themselves to be following the Ayotte framework in deciding not to remand the case for consideration of a more limited remedy.

Anyway, the Second Circuit also has a post-Ayotte case, and they deferred the remedy issue for supplemental briefing. So, as I note above, this is indeed a somewhat open issue for the Court, even if they end up affirming the Ninth Circuit.
2.21.2006 3:33pm
SimonD (www):
This language is too vague to inform a physician whether his PBA is violating the statute. It seems to me invalid on the basis of the ex post facto clause.
More even than vagueness: Congress cannot legitimize a statute that legislates on a subject beyond its grasp simply by paying lip service to an enumerated power over an issue which is within its gasp.
2.21.2006 3:36pm
Defending the Indefensible:
MDJD2B:

Nobody ever contended that medical marijuana preserved life. The contention was that it relieved pain.

False.


http://www.angeljustice.org/downloads/raichashlucido.pdf
2.21.2006 3:39pm
Nobody (mail):
MDJD2B:


This language is too vague to inform a physician whether his PBA is violating the statute. It seems to me invalid on the basis of the ex post facto clause.


Vagueness may render a statute unenforceable or unconstitutional, but it does not render a statute ex post facto.
2.21.2006 3:43pm
Mr Diablo:
I was just trying to add some quick summary of what the Ninth said in its factoring in of the court's remand in Ayotte, wasn't meaning to specify that they were bound or analyzing the same law. The Ninth was looking at how the Congress had deliberately elected not to include a health provision and that they felt they would be overstepping their bounds to craft one for them and find some way to save the statute. It looked like they were trying to add analysis in case Ayotte did apply. Or they were trying to push buttons. Either way, I thought it was a well written section and succicntly outlined the subversion of the political process that can come from statutes being rewritten by courts.

Sorry if what I wrote was not clear, but reading what you wrote we seem to be in agreement as to what the Ninth did it.
2.21.2006 3:46pm
Just an Observer:
Medis, Mr. Diablo:

I think that, assuming a COA is trying to follow Ayotte, it would be obliged to consider the legislative intent. Specifically, the court would have to decide if the legislature would rather have had no statute at all or a statute with a narrowly construed health exception applied.

However, in the federal PBA case, the court first must wrestle with the claim that Congress made a finding of fact resolving the medical issue. I'm still mulling that one.
2.21.2006 3:55pm
gvibes (mail):
SimonD - Do you have any case support for the proposition that "Congress cannot legitimize a statute that legislates on a subject beyond its grasp simply by paying lip service to an enumerated power over an issue which is within its gasp"? I haven't read Morrison and Lopez in a while, but there was certainly a suggestion of the opposite view, right?
2.21.2006 4:10pm
Brandonks (mail) (www):
Abortion is the Supreme Court's Gordian Knot

The conundrum of abortion decisions in the courts is an insoluble one. That is because the federal courts are an inappropriate place to fight this one out in the first place. The Constitution of the United States simply does not address the issue. It took an activist court to create the legal grounds for Roe vs. Wade, and that creation reflected the personal views of the Justices, not well founded constitutional principle. That is always trouble.

Both sides on abortion would like the Supreme Court to decide that all Americans must adhere to their respective views, imposing it's will as it has since Roe vs. Wade on us all. Neither outcome would reflect the views of most Americans.

A little over half of Americans support the availability of abortion in general. A little over half also oppose abortion when it is solely for the purpose of terminating an unwanted pregnancy. Both sides of the abortion zealots are unhappy with this. They want either completely unfettered abortion as a "constitutional right" or they want all abortions to be illegal.

The courts and congress need to get out of this thicket of thorns and turn the issue back to where it belongs -- to state legislatures or ballot initiatives. That would make the lobbies on both sides unhappy, and the American people the winners. A novel proposition.

As a practical matter, it will take a long time, if ever, before common sense prevails. You may recall the endless questions in confirmation hearings regarding stari decisis. Why all this attention to a Latin term most people have never heard of? Because it boils down to the principle that previous court decisions should be respected and rarely overturned. It was a code word for "Will you leave Roe Vs. Wade alone?" It makes reversing even bad decisions of unduly activist courts difficult.

The larger the issue in a case, the less likely a conservative court is to throw it out. Even when the decision is horribly pernicious, the court often feels compelled to follow stari decisis. The classic example was the famous Dred Scott decision on slavery, that in the words of Chief Justice Charles Evan Hughes, was a "self-inflicted wound" from which it took the court at least a generation to recover.

Dred Scott v. Sandford was never overturned by the Supreme Court, it was overturned by the Thirteenth Amendment which abolished slavery, and the Fourteenth Amendment, which granted citizenship to former slaves. The lesson is that even the worst decisions die hard.

The late Chief Justice William H. Rehnquist, in his book "The Supreme Court", discussed "when the court is working within the bounds of the Constitution and when it is going beyond these bounds to impose on the country its own views in the guise of constitutional doctrine.." Roe Vs. Wade is just such an excess, but we will likely have to live with it for some time to come.
2.21.2006 4:16pm
SimonD (www):
Not off the top of my head, but it would seem axiomatic that Congress cannot grant itself authority over an issue it does not otherwise have authority over merely by declaring a compelling interest and reciting the magical incantation "interstate commerce."
2.21.2006 4:17pm
Medis:
Mr. Diablo,

Indeed, I think we agree about what the Ninth Circuit decided (and about the merits of that decision as well).

JaO,

I agree--Ayotte in fact requires that analysis.

On the medical issue--I'm not sure what the Court will do, but that is one place where Justice Kennedy may in fact draw a distinction between the states and Congress. In other words, a lot of his opinion in Stenberg seemed to be based on the notion that federal courts should defer to the states on medical issues (see also his opinion for the Court in Gonzales v. Oregon). He may well apply the same principle to congressional factfinding, but I am not so sure.
2.21.2006 4:18pm
SimonD (www):
The presumption of constitutionality, by the way, would go a lot futher had the Court not spent much of the last half-century encouraging Congress' natural inclination to believe in its own omnipotence. The theory goes that the Court must give broad deference to Congress' belief in the Constitutionality of its own actions, but that is a theory which rests on the assumption that Congress seriously contemplates its constitutional authority to enact a statute. Yet this act - like many others - seems premised not on any positive grant of power, but on the declaration that Congress has a compelling interest in a distasteful procedure opposed by a majority of Americans, the fig-leaf of a haltingly-brief mention of the commerce clause notwithstanding. I think it is a highly dubious proposition that Congress seriouly contemplates its Constitutional authority - under the original understanding, the evolving standards of decency and exigencies of current needs, or any other theory of interpretation - for virtually any of the legislation it sees fit to pass, and it has been encouraged to feel this way by the refusal (until only very recently) of the Court to take seriously the idea of Federalism.
2.21.2006 4:31pm
Defending the Indefensible:
SimonD:

The proper incantation should be, "We find this statute necessary and proper to effectuate a general regulatory scheme affecting interstate commerce, and funds for which to be raised, spent or withheld pursuant to our taxing authority for the general welfare."

There. Now the Congress has plenary authority on everything. Add in the Supremacy Clause for good measure if you want to disable the states from having any countervailing authority.
2.21.2006 4:44pm
SimonD (www):
Defending the Indefensible,
Reading tone is difficult on the internet, but I think you're deploying sarcasm in support of my point, in which case, I think your post demonstrates the danger of broad deference. You're correct, of course, that Congress has broad authority to enact laws which are necessary and proper to sustain a law involving a specific enumerated power. This means, obviously, that the broader one reads the commerce clause, the greater one must read the multiplier (the necessary &proper clause) to be. As a thought excercise, it actually turns out to require not a vast expansion of the scope of commerce clause to transform the necessary &proper clause - into little short of a plenary power, the precise thing denied to the Congress by the Constitution.

I think this is exactly what worries people - I think this is what Medis said a couple of weeks ago - about Scalia's attitude in Raich.
2.21.2006 4:53pm
Defending the Indefensible:
SimonD:

Maybe I should have used a ;-)

You'll want to read this thread from Balkin I think.

The Horizontal Sweeping Clause
2.21.2006 5:01pm
Mr Diablo:
But at what point does legislative intent analysis boil over into the realm of judicial legislating, substituting and explaining away something that was missing from a statute as the clear intent of those who wrote it?

I find that approach to jurisprudence especially troubling when we have laws that are just a couple years old and a Congress made up of 95% of the same people, who certainly could do their own damn modification if they wanted to. Not to mention the ignorance of the political process and related horse-trading that happens with every bill that is passed back and forth under the Rotunda....
2.21.2006 5:23pm
Medis:
SimonD,

I think that is also a good point, but my argument in that discussion of Scalia's opinion in Raich was slightly different (although perhaps this is just the same basic view arising from a different starting point).

My point about Scalia's opinion was that he removed any practical limits on the Commerce Clause with his extremely broad view of how the NPC interacted with the Commerce Clause. Essentially, as long as something--apparently anything--is only an "instant away" from a regulated interstate market, in Scalia's view that thing falls with the scope of the Commerce Clause as expanded by the NPC. And that is true even if that thing does not have a "substantial affect" on that interstate market.

Of course, essentially everything--goods, services, etc.--is only an "instant away" from some interstate market or another (thanks Ebay!). Moreover, Scalia showed no interest in subjecting congressional claims to that effect to anything but highly deferential rational basis review. So, given Scalia's approach, essentially anything would fall within the scope of federal regulation, as long as Congress chose to regulate the interstate market in things of that kind.

I did indeed note that if one started with a very limited sense of what the Commerce Clause proper included within its scope, then Scalia's NPC argument would potentially be less sweeping. In other words, if there were limits on what interstate markets Congress could regulate, there might be pass-through limits on the Commerce Clause as expanded by the NPC, even given Scalia's views.

But again, Scalia seemed to accept there were no limits on what interstate markets Congress could target. And again, since everything in practice is only an "instant away" from such a market (particularly when Congress has no real burden of proof on this issue), everything in practice can be regulated.

So, as with anything else, Congress would have no problem in regulating any given service. First, it would declare a prohibition on the interstate market for that service. Then, it would declare that every provision of that service was at most an "instant away" from that interstate market (thanks Greyhound!). And that should be enough to satisfy Scalia's criteria.
2.21.2006 5:25pm
SimonD (www):
DtI,
I hvan't forgiven Balkin for his Slate essay last year yet, so I approach this article with trepidation, and I approach it with even more trepidation since he's going to be defending the constitutionality of a department I'm not entirely convinced is Constitutional in the first place, the DoE ("the Constitution gives Congress powers to regulate education under the taxing and spending clause"? Really?).
2.21.2006 5:26pm
Defending the Indefensible:
SimonD,

I think Brett's replies on that thread are pretty consistent with my own thoughts.
2.21.2006 5:35pm
bluecollarguy:
"[I]f a state were to permit abortion on demand, I would and could in good conscience vote against an attempt to invalidate that law, for the same reason that I vote against invalidation of laws that contradict Roe v. Wade; namely, simply because the Constitution gives the federal government and, hence, me no power over the matter." Scalia


Nothing in the language you've quoted here restrains Scalia from holding that Congress can make laws proscribing or not proscribing abortion. Of course those laws are constitutionally constrained to powers that Congress actually has and actual interstate commerce is one of those. Another would be proscribing certain abortions on military installations.

Scalia has held consistently since Webster that the constitution is silent on abortion. So he takes the only position he can. Abortion is a liberty interest where people can disagree and thus the states and Congress, in it's sphere of power, can legislate for or against it.
2.21.2006 6:26pm
KeithK (mail):
Here's a simple way the court could issue a PBA ruling based on the Commerce Clause. It coud say that performing an abortion has nothing to do with interstate commerce (and I generally don't believe it does) and therefore this law is unenforceable. Actually, that could simply be a ruling on statutory grounds.
2.21.2006 8:15pm
Bruce Hayden (mail) (www):
As to the suggestion that abortion doesn't have anything to do with Interstate Commerce - that might be true overall, but a lot of docs who do regular abortions won't touch partial birth abortions. After all, it involves killing an otherwise viable pre-baby. A lot of those doing abortions are ob/gyns, and many of them got into the business because of the babies. It is one thing to abort in the 1st trimest, but by the 3rd, a lot of them have scruples. So, I fully expect that there are cases where it is easier to cross a state line than to find a PBA in your home state.
2.22.2006 1:42am
minnie:
BTW, what do you call it when a beautiful bird is flying in the sky, you shoot at it with 200 bird shots, it falls to earth, your dog goes and picks it up and brings it to you, it lies writhing in agony, but not quite dead?

Partial murder?

I guess when you then break its neck, cook it and eat it, it's Complete Murder.
2.22.2006 3:55am
minnie:
"essentially raising being upset over not getting an abortion to the level of a medical crisis"

Oh yes, Brett, whom I would surmise is never going to get pregnant himself, so he pontificate on the issue without its ever affecting HIS life, thinks that a woman faced with the prospect of her entire life being ruined has some nerve thinking that such a prospect would rise to the level of a MEDICAL crisis. Surely an impacted tooth is more of a problem, in Brett's view.
2.22.2006 4:01am