February 21, 2006


Supreme Court Reopens Abortion Issue on Alito's First Day (JOHN O'NEIL, 2/21/06, NY Times)

The Supreme Court announced today that it will hear a challenge to a federal law outlawing an abortion procedure, reopening the contentious issue on Justice Samuel A. Alito Jr.'s first day on the bench.

The law, the Partial Birth Abortion Act, was passed in 2003 but was immediately challenged in court and has never taken effect. It was ruled unconstitutional by three federal appeals courts in the last year, in rulings based on a Supreme Court decision in 2000 striking down a similar law passed in Nebraska.

In that case, Stenberg v. Carhart, a 5-to-4 majority that included the now-retired Justice Sandra Day O'Connor found that any abortion ban must include an exception for the health of the woman. Justice Alito was sworn in three weeks ago as Justice O'Connor's successor after a rancorous confirmation process that focused heavily on the question of abortion.

Posted by Orrin Judd at February 21, 2006 4:49 PM

Well, we know how Miers would have voted, let's hope that Alito rises to her standard.

Posted by: Jim in Chicago at February 21, 2006 5:12 PM

That's the risk here. Miers was a sure vote. Alito is a crapshoot.

Posted by: oj at February 21, 2006 5:15 PM

I hope that was sarcasm from Jim. Alito only has to remember what his mother told the press just before his confirmation hearing. And it wouldn't hurt to peruse medical literature to expose the chicanery of an alleged "health of the mother" exception for partial-birth infanticide (which is what this case turns on).

Posted by: Patrick O'Hannigan at February 21, 2006 5:18 PM

Not sarcasm. Yes, we know how Alito's mom would have voted to.

Posted by: Jim in Chicago at February 21, 2006 5:20 PM

Even without Roberts and Alito, Stenberg was doomed after Ayotte.

Before that, the Court had been treating baby-murder as though it were a fundamental right, like freedom of speech. Entire statutory schemes being struck down for minor, sometimne hypothetical, defects.
No more. Post Ayotte, the step-by-stem dismantling of the death machine will inexorablt proceed, closeing in on the butchers like the Red Army of Berlin.

Posted by: Lou Gots at February 21, 2006 7:52 PM

There's still time for Kennedy to turn to the dark side.

Posted by: pj at February 21, 2006 9:22 PM
The law, the Partial Birth Abortion Act, was passed in 2003 but was immediately challenged in court and has never taken effect.
This quote makes it sound like this was done w/o even the fig leaf of an ostensible plaintiff--there couldn't possibly be one if the law really "has never taken effect".

Could some lawyer or conlaw prof in the crowd please explain this to the confused rabble?

Posted by: Kirk Parker at February 22, 2006 12:55 AM

Kirk - Remember in the old days you had two types of restrictions on speech, "prior restraint" in which the government barred you from speaking in advance of your speech, and restrictions (such as damages for libel or copyright violation) imposed afterward.

So, too, there's two types of judicial activism. One makes up its own laws when it gets a case, and the other restrains the elected branches of government before they attempt to enforce contrary laws. This "prior restraint" is what the judiciary has put in effect. It has no basis in law, of course, but it has a customary basis in the unwillingness of elected officials to challenge judges.

Under the original Constitution, a conflict between the legislative and judicial branches over the law should work like this. The administration of course has the legal right to bring cases under the 2003 law, which has never been repealed, and should bring such cases (by arresting partial-birth aborters) if it believes the 2003 law to be constitutional. The judiciary can then dismiss the cases, if they accept the Supreme Court ruling that it is unconstitutional. This can go on over and over again until either Congress changes the law, or the Supreme Court changes their interpretation of the Constitution.

Posted by: pj at February 22, 2006 1:44 PM

Kirk: What had happened was that the lower courts were finding that the laws were burdensome on a woman's right to choose the death of her child and were enjoining their enforcement. This procedure mirrors the way courts treat laws effecting prior restraing of free speech.

The procedure is fragile: Ayotte may have already shattered it like glass. As the former Court twisted and stretched the law to erect and maintain the death machine, only slight adjustments will be needed to send the baby-murder regime back to Hell.

Posted by: Lou Gots at February 23, 2006 6:54 AM