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Sixth Strikes Down Michigan PBA Law:

Yesterday the U.S. Court of Appeals for the Sixth Circuit struck down a Michigan law banning "partial-birth abortion." According to the court's opinion, written by Judge Boyce Martin, the statute imposed an unconstitutional "undue burden" on a woman's right to an abortion under applicable Supreme Court precedent. State partial-birth abortion bans are consitutional, the court held, so long as they do not constitute an "undue burden." Michigan's statute, however, went too far because it could be construed to prohibit other procedures. As the Court concluded,

We certainly are reluctant to interfere with a statute that represents the will of the elected representatives of the people of Michigan, and do not do so lightly. If, however, the Michigan legislature had sought in good faith to enact a statute that prohibited the abortion procedures it deemed objectionable while complying with the limits imposed by the Constitution, it had plenty of guidance on how to proceed. The Supreme Court's decision in Stenberg predates the Michigan statute by five years. Further, in Taft, we fully upheld an Ohio statute pertaining to such procedures the year before the Michigan statute was passed. Michigan could have simply copied that statute word-for-word, and been virtually guaranteed a favorable result in the courts of this Circuit. It instead opted to use statutory language that pushed almost every boundary that the Supreme Court has imposed for these types of laws, and which have recently been reaffirmed in Gonzales. Because the statute cannot be squared in any way with these limitations, and the Attorney General's opinion is similarly inconsistent with the relevant court decisions and with the statute itself, the district court correctly determined that invalidation is the only available course.

Note that the court here is not simply relying on the recent Supreme Court decision upholding the federal PBA ban (Gonzales v. Carhart), but also the reasoning of the Supreme Court's earlier decision invalidating Nebraska's PBA ban (Stenberg v. Carhart). At least in the Sixth Circuit, this means that Stenberg survived the Supreme Court's more recent abortion decisions. The ACS Blog has more here.

Esquire:
It's interesting how it's somehow "bad faith" to not want to just copy some other state's law "word for word." (The nerve of Michigan to actually think they're a sovereign state in a federalist system!) I wonder if a state's desire to protect any other group would ever get attacked in such a way...
6.5.2007 10:30am
markm (mail):
Esquire, did you read the next sentence: "It instead opted to use statutory language that pushed almost every boundary that the Supreme Court has imposed for these types of laws, and which have recently been reaffirmed in Gonzales."
6.5.2007 4:32pm
Houston Lawyer:
Abortion law, as drafted by the courts, is ad hoc and often changing. The justices were clearly sneering at the legislature for daring to legislate, when everyone knows only judges have that right.
6.5.2007 4:39pm
Bryan DB:
Houston,
I think they were sneering at the Legislature for being *dense.* Presumably, the Legislature had a crystal clear template for a law that would give them the results they sought, but decided to push their luck anyway. That's not "daring to legislate"; that's hubris.
6.5.2007 5:36pm
Houston Lawyer:
So trying to stop a heinous procedure by legislation is "hubris". They should know their place. It's not like we live in a democracy or anything.
6.5.2007 5:46pm
Colin (mail):
Houston Lawyer, that last comment is completely non-responsive. You are (I assume) aware that democratically chosen policy is subject to judicial review. Your sarcastic and sneering aside doesn't even attempt to address Bryan's point: the legislature had a template for a law that would achieve their goals and pass such review. They also had some guidance on the parameters of what the courts would accept as Constitutional if they chose to go beyond that template. Rather than efficiently legislating to achieve their goal, they rode through the fences, and got shot out of the saddle. It happens, as any Texan should know.
6.5.2007 7:02pm
ReaderY:
Well, either Michigan will change its law to make it closer to the federal one, or we'll get another Supreme Court case next term.
6.5.2007 8:08pm
MatthewM (mail):
Colin, you've got it all wrong here. The Michigan legislature shouldn't be forced to follow a "template" or whatever it is called; it's options in this particular situation shouldn't be circumscribed by the court's byzantine abortion jurisprudence. Houston Lawyer, as I, think that the Roe v. Wade line of cases are incorrect; and our "sarcastic asides" are ways of pointing out what we believe to be the plain and simple fact -- that the court's poorly-conceived, illogical abortion jurisprudence is permitting some very evil things to be done, and is stopping those who are attempting to restrain those evils.
6.5.2007 10:22pm
Colin (mail):
The Michigan legislature shouldn't be forced to follow a "template" or whatever it is called;

The Michigan court isn't forced to follow a template. It could have written a constitutional statute from scratch. It chose not to. As the circuit said, "If . . . the Michigan legislature had sought in good faith to enact a statute that prohibited the abortion procedures it deemed objectionable while complying with the limits imposed by the Constitution, it had plenty of guidance on how to proceed." If all the Michigan legislature wanted to do was prevent the destruction of a "perinate," it had at least two clear examples of statutes sufficient to do so. Those cases don't just provide examples of constitutional statutes, they also define the boundaries beyond which the state couldn't pass. The legislature chose to "push[] almost every boundary that the Supreme Court has imposed for these types of laws, and which have recently been reaffirmed in Gonzales."

The Michigan legislature is certainly free to do so. When it pushes past the statutes that have already been approved, especially in such a hotly-contested field, it runs the risk of running into unconstitutional territory. Here, where it barred D&Es despite the rule in Stenberg, it was clearly contary to existing Supreme Court precedent. If the legislature wants to provide a test case, that's fine... but it should expect its statute to be ruled unconstitutional in the meantime. (It's worth pointing out that this statute was so badly drafted that it seems likely it would have been been struck for vagueness, had its contravention of Stenberg not made that a moot issue.)

It is the role of the Supreme Court to prescribe the boundaries of the Constitution. The Supreme Court said that a state can't ban D&Es outright. Michigan did so anyway. I understand that you don't like the law, but please don't confuse what the law is with what you want the law to be. Trying to be clever, HL said, "not like we live in a democracy or anything." Well, we don't. We live in constitutional republic. One of the rules of a constitutional republic is that the majority can't pass laws that contravene the Constitution, even if they believe "that the court's poorly-conceived, illogical abortion jurisprudence is permitting some very evil things to be done."

Passing poorly drafted laws that run roughshod over the existing precedent is a poor way to change the existing jurisprudence, because bad statutes make bad caselaw. Snippy sarcasm doesn't persuade anyone, either.
6.5.2007 11:48pm
Mike BUSL07 (mail):
I don't see why some here are so offended by this opinion. After all, there are other areas of jurisprudence where outer limits of what is kosher continue to evolve. The smart legislature, when dealing in such an area, will not push the outer limits, choosing instead to stay in well-charted waters. Michigan didn't do this, and it got licked. That the statute in question had to do with abortion doesn't really change anything.
6.6.2007 2:33am
Brett Bellmore:

The smart legislature, when dealing in such an area, will not push the outer limits, choosing instead to stay in well-charted waters.


How would anyone know that the limits of what the courts were willing to permit were "evolving", if legislatures never pushed those outer limits? It's not like the courts are very good about telling people when they've "evolved" their views, and are ready to permit something news.

If all legislatures were "smart", then, the law wouldn't "evolve".
6.6.2007 7:22am
Colin (mail):
Those are good points, Brett, and I agree in principle. Here, though, it looks like Michigan wasn't just trying to push in one area. The Sixth explicitly said they were pushing all the established boundaries. Passing laws outside known constitutional limits can be smart... passing laws that reside entirely outside those limits is more like squandering public money on a PR campaign.

For instance, the courts here say that it's pretty clear that the law prohibits all D&Es, which the Supreme Court has explicitly forbidden. (I'm not an expert in this area, so take my analysis with a grain of salt.) That's not evolving the law, it's just passing an obviously unconstitutional statute. I certainly think that there are times when that's acceptable, and it can be both smart and a good idea. But it's ridiculous to complain when lower courts find such a statute unconstitutional. Until the Supreme Court changes its mind, the DCT and COA are bound by is jurisprudence.
6.6.2007 2:45pm
whackjobbbb:
The black-robed fascists... hard at work... affirming, carrying forward and building upon the work of a previous generation of black-robed fascists.

That legislation originated as a citizen's ballot initiative, so I guess the legislature is stupid... and the people are stupid, too. How helpful and efficient, that we have (and have had for a couple generations now) these fascists about... to inform us of our ignorance... and keep us in line.
6.6.2007 3:47pm
Colin (mail):
The black-robed fascists...

You live up to your name. What, exactly, is fascistic about lower courts complying with the Supreme Court's rulings? What system would you prefer?

The authors of the initiative were stupid, unless they had some purpose beyond simply prohibiting PBA that I can't discern. (That's certainly possible.) This law didn't fail because the Sixth Circuit is an abortion-hungry cabal of elitist black-robed Prius-driving liberals. It failed because they wrote a bad piece of law. Not just badly planned, but badly written. As the COA noted, it would likely have been void for vagueness even if it didn't fall under Stenburg. It's a lesson to legislators and drafters everywhere - if you want to pass a law on an important topic, be careful. Do a good job. Don't half-ass the coverage of the statute, and don't make it ridiculously vague. It's law. It pays to be pedantic.
6.6.2007 5:18pm
whackjobbbb:
Agreed, that the 6th group of black-robed fascists likely followed that previous generation of black-robed fascists' lead on this. They provided another layer of cladding onto the weak structure constructed long ago, an empty shell of a structure, built on fertile ground... now left lifeless and barren. Well done, gruppenfuhrers. It is as it was. Well done.

Limit what you do, you idiots. If you carry an essential sense of limitation into your work, you'll minimize the prevalence of this nonsense, nonsense which will only precipitate an equally unlimited response... some day.
6.6.2007 7:59pm
Colin (mail):
IHBT.
6.6.2007 8:24pm