Supreme Court Upholds Partial Birth Abortion Ban 5-4
Update: Ginsburg Channels Marcotte And Goes After The Patriarchy!

Along predictable lines.

The law banning the procedure relies upon the elastic and well-abused Commerce Clause power of the Constitution (the clause that supposedly gives the federal government the right to regulate and legislate anything that "affects the stream of interstate commerce," which means, when jurists want it to, the power to control anything and everything. Which is something conservatives are generally wary of.

Thomas joined the decision, but noted that neither party had even rasied the Commerce Clause as an issue, and hence that issue wasn't before the Court.

I also note that whether the Act constitutes a permissible exercise of Congress’ power under the Commerce Clause is not before the Court. The parties did not raise or brief that issue; it is outside the question presented; and the lower courts did not address it.

He thus addresses an issue no one else had even bothered to mention, and which he didn't have to mention himself. Leading to the suspicion that were a challenge brought on these grounds -- i.e., that the Commerce Clause simply cannot be used as pretext for federal action on something that quite obviously does not "affect the stream of interstate commerce" in any meaningful way -- he might rule differently.

Of course justices are allowed to raise issues sua sponte (on their own initiative), and are quite capable of researching points of law no parties have briefed them on, so Thomas could have, if he chose, voted with the pro-PBA justices on these grounds.

The opinion is here.

A Longer Digest: at SCOTUSblog, recapitulating the major arguments.

The Court said that it was upholding the law as written -- that is, its facial language. It said that the lawsuits challenging the law faciallly should not have been allowed in court "in the first instance." The proper way to make a challenge, if an abortion ban is claimed to harm a woman's right to abortion, is through an as-applied claim, Kennedy wrote. His opinion said that courts could consider such claims "in discrete and well-defined instances" where "a condition has or is likely to occur in which the procedure prohibited by the Act must be used."

That is, the law should not have been challenged as unconstitutional as written, though specific parties may argue that it is unconstitutional as applied to their specific situations -- challenging not the entirety or basics of the law, but the specific application of it to themselves.

Justice Ginsburg was spitting nails. No Sullivanesque "politics of doubt" for her, thank you.

Ginsburg, in a lengthy statement, said "the Court's opinion tolerates, indeed applauds, federal intervention to ban nationwide a procedure found necessary and proper in certain cases by the American College of Obstetricians and Gynecologists. For the first time since Roe, the Court blesses a prohibition with no exception protecting a woman's health." She said the federal ban "and the Court's defense of it cannot be understood as anything other than an effort to chip away at a right declared again and again by this Court -- and with increasing comprehension of its centrality to women's lives. A decision of the character the Court makes today should not have staying power."

That final comment, concluding remarks delivered without an open display of emotion, clearly was a suggestion that the ruling might not survive new appointments to the Court -- just as the arrival of Chief Justice John G. Roberts, Jr., and, especially, Justice Samuel A. Alito, Jr. -- had led to the switch she claimed had come about this time. Ginsburg pointedly noted that the Court is "differently imposed that it was when we last considered a restrictive abortion regulation" -- in Stenberg in 2000.

In the course of her dissenting opinion, Ginsburg accused the majority of offering "flimsy and transparent justifications" for upholding the ban. She also denounced the Kennedy opinion for its use of "abortion doctor" to describe specialists who perform gynecological services, "unborn child" and "baby" to describe a fetus, and "preferences" based on "mere convenience" to describe the medical judgments of trained doctors. She also commented: "Ultimately, the Court admits that 'moral concerns' are at work, concerns that could yield prohibtions on any abortion."

Another tidbit: While Thomas and Scalia called for a reexamination of the entire issue, stating that abortion rights had no constitutional basis, Roberts and Alito did not join that concurrence. Which doesn't mean they disagree, but it does seem to indicate they're not enthusiastic about such a reexamination.

Great Catch From Allah: Ginsburg citing the famous "Women's Right To Shape Their Destinies" Clause of the Constitution:

Though today’s majority may regard women’s feelings on the matter as “self-evident,” this Court has repeatedly confirmed that “[t]he destiny of the woman must be shaped . . . on her own conception of her spiritual imperatives and her place in society.

She likens the majority to previous, ancient Courts holding that, for example, that women are basically adult children to be cared for and guided by men, and fit chiefly to serve the nation as wives and mothers.

Also from Allah: Giuliani wastes no time at all in declaring the decision to be the proper one, and keeps his statement short:

"The Supreme Court reached the correct conclusion in upholding the congressional ban on partial birth abortion. I agree with it."

... thus avoiding the problem of wrong-footing it every time he speaks on a hot-button issue.

posted by Ace at 12:44 PM

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