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CNN Breaking News
Posted by on Wednesday, April 18, 2007 at 10:15 am

U.S. Supreme Court in a 5-4 ruling upholds a law banning what some call “partial birth” abortions.

Visit CNN for the latest.

UPDATE BY BRENDAN: Oddly, CNN now has nothing about this on its homepage (as of 10:36 AM). But you can read about it on SCOTUSblog. Key excerpt:

The Court said that it was upholding the law as written — that is, its facial language. It said that the lawsuits challenging the law 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 as 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.”

Kennedy said the Court was assuming that the federal ban would be unconstitutional “if it subjected women to significant health risks.” …

[The dissent, however, wrote that] “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.”

Meanwhile, the Associated Press seems confused about the nature of our government and the respective roles of its three branches, characterizing this decision as “the first time the court banned a specific procedure in a case over how—not whether—to perform an abortion.” Um, yeah, okay, the Court didn’t “ban” anything, the Court upheld a ban that was passed by Congress and signed by the president. Big, huge, ginormous difference there. If the Court had “banned” late-term abortions on constitutional grounds, this would be a much, much, much bigger story. Wake up, AP.




38 Comments on “CNN Breaking News”

  1. Anonymous Says:

    from scotusblog: The Court said that it was upholding the law as written — that is, its facial language. It said that the lawsuits challenging the law should not have been allowed in court “in the first instance.”

    Looks like it was decided on narrow grounds and the court did not address the constitutionality of the law.

    Might not be the news story CNN makes it out to be.

  2. Brendan Loy Says:

    Thanks. Link here.

    I was working on a blog post about this, but CNN scooped me. Bastards. :)

  3. Anonymous Says:

    CNN pulled the alert.

  4. Anonymous Says:

    Opinion here:

    http://www.scotusblog.com/movabletype/archives/05-380_All.pdf

  5. Brendan Loy Says:

    You’re right… that’s weird… there isn’t even a story on the CNN homepage about it!

  6. Brendan Loy Says:

    I’m not sure how this sentence in the AP article can be justified: “It was the first time the court banned a specific procedure in a case over how—not whether—to perform an abortion.”

    Um, the court didn’t ban anything, the court upheld a congressionally passed, presidentially signed ban on something. Big, huge, honking difference there.

  7. Anonymous Says:

    Agreed. This statement by Lyle Denniston on scotusblog seems more accurate:

    “first-ever decision by the Court to uphold a total ban on a specific abortion procedure “

  8. Joe Mama Says:

    Much of what the AP reports is unjustified.

  9. Joe Mama Says:

    A ban on partial birth abortion is to NOW what the assault weapons ban was to the NRA.

  10. 4-7 Says:

    flame on !

  11. 4-7 Says:

    The AP writes the way it does, like many politicos talk, because it is in the interest of many to portray the Supreme Court as the source of rights, deciding what our freedoms are and aren’t. So the fact that this is a democratically elected ban 30 years and leaps and strides away from the more subordinate political position of women is irrelevant to many. The male majority has decided, so our freedoms are gone, many will say. Forget the fact that we have a female speaker of the house and may have a female president in two years - save us Courts of Law ! Save us with Penumbra!

    4-7 will now stop contributing to any simmering flame war. (for a few hours)

  12. 4-7 Says:

    back for a sec. I continue to love how PBA is called (as in the CNN auto post) “so-called” and “what some call”. Some people call that big fiery ball of gas in our solar system “the sun”. I also call the head of the Executive Branch of the United States “the President.” So when a doctor allows a fetus to pass halfway through the birth canal and into open air and then stabs it in the neck below the brain, suctions its life away, and then removes the remains, I say “partial birth” is pretty accurate. If you want to go with half-birth, I’ll stand wit ya. But “Dilation and Extraction” ? Hmmm. If you think that’s more “accurate” you must be the kind of person that calls to inform a friend of another’s heart attack and says “he had a midocardial enfarction (sp)”. : )

  13. Brendan Loy Says:

    Instalanche!

  14. thebeef Says:

    Just to clarify an earlier post by “anonymous,” the Court certainly DID address the constitutionality of the law. That said, it was a narrow ruling. Indeed, the steadfast application of CASEY implies that, while a pro-life victory, it was hardly a resounding victory.

    Moreover, as Thomas notes in his concurrence, the law was not challenged under the Commerce Clause. I have to think that eventually someone will challenge the law under the commerce clause, which could result in SCOTUS striking down the law. Of course, while I might be over-generalizing, it seems to me that the people who support a woman’s right to abortion typically support a broader interpretation of the commerce clause, while those who are pro-life tyically support a more limited commerce power, which would result in a strange dynamic on the issue: conservatives arguing for greater federal regulation and liberals arguing for a more limited central government.

  15. anon Says:

    Good clarification, Brendan. Not saying that every citizen should be required to go to law school (of course!), but lack of understanding of separation of powers and the rule of law permeates media reporting.

  16. Doug Mataconis Says:

    Here’s a question, where in the Constitution does it give Congress the authority to even do this.

    It’s the ever-expanding Commerce Clause, of course, and I think it’s time we re-examined that part of the Constitution.

  17. Anonymous Says:

    Most of the media sources are referring to the ban as a ban on an “abortion procedure”. Some in fact name the Partial Birth Abortion Act, but it is amazing that most of the sources are unwilling to refer to the procedure by its actual name. I guess it is just easier to stir up controversy on a facially inhumane method of killing.

  18. JorgXMcKie Says:

    What makes you think anyone at the AP understands anything at all about our form of government?

  19. Scientizzle Says:

    midocardial enfarction

    It’s “myocardial infarction” if anyone was curious…that’s all I have to add.

  20. Raider51 Says:

    I haven’t checked back but the early AP story only quoted from the dissent, not the opinion of the Court.

    I think Kennedy left a lot of hints in his opinion as to how to structure a challenge so as to strike down the law on an “as applied” basis.

    Also, the reason for the media hub-bub, I’m guessing, is this case was underscored by J. Ginsburg reading her dissent from the bench.

  21. 4-7 Says:

    Oh, that’s rich. I cannot believe the Respondents raised a Commerce Clause argument. How hypocritical. Bending and stretching the constitution to its limit is what gave us Roe, and now that Congress’ powers are construed broad enough to ban certain medical procedures, they want to go all strict constructionist on us.

    Albeit, being the federalist that I am, I admit that the Commerce Clause previous to its freedom-rending gutting by the Court 1940s infra probably wouldn’t permit the PBA, but folks, we’re a long way from 1940s. I’m not about to give up a broad Commerce power when it suits my interests unless the Roe lobby is willing to give up its precious Penumbra. We take the cards we’re dealt. So don’t tell me I can’t have my own pet penumbra to save the lives of half-born babies. Alls fair in love and lax constitutional interpretation.

  22. Joe Mama Says:

    LOL

  23. submandave Says:

    Was anyone else struck by the claim that the “right [to abortion] declared again and again by this Court” has a position of “centrality to women’s lives.” (emphasis added) So somehow abortion has becoms a central feature of American women’s lives and we have a SCOTUS justice extoling the rights they “declare” for us. Amazing how some people think.

  24. Alasdair Says:

    submandave - well, it can hardly be central to the lives of those aborted, now, can it ?

  25. 4-7 Says:

    Am I wrong to suggest that policy advocates on the other side of this debate seem deeply committed to not shedding so much as a crocodile tear for the infant/fetus that is basically tortured to death ? I mean, I’m a conservative guy and an often supporter of the Bush administration, but I still have an oft-expressed sympathy and deep concern and regret over the loss of lives incurred pursuant to our Iraq policy.

    If you want some credibility (you don’t have to mean it), you don’t just go up on your _____ in ‘08 website with a boilerplate “I strongly disagree” - show some stones and accept the fact that this is a brutal procedure. Instead, they spin the focus to the lack of a “health” exception, ignoring the glaring “life” exception the policy has (the point “health” exceptions are opposed by the Right is that they basically emasculate the law and ability to prosecute - health, being infinitely more permissive than “life”, which still permits a lot of discretion). (Of course, I wonder about a mother who would subject a fetus to this treatment even if her life was possibly on the line. I mean, is there no procedure that doesn’t involve anesthatizing (sp) the fetus before extraction; makes me sick of course to speak in a way that sounds like authorizing it, but I’d spare the babies the pain where I can’t save them with the law; who knows, PP certainly likes to argue this is a medically necessary procedure; just weird is all, that - abortion is wrong arguments aside- we don’t have a better way of doing it (oh, well, then again, lots of people could care less whether a fetus claws in terror as it’s life is ripped away). Man, so disgusting, how can people hold the PBA position without at least acknowledging the scars and welts of their “necessary evil.” Like a slavery apologist who won’t acknowledge the wounds on the oppressed. No credibility.

    Ok. kind of an incoherent rant. But I’d have a bit more respect for a judge who says, misguided though they are, I recognize this is a terrible procedure that brutalizes a child seconds away from its legal existence and citizenship, but I am constrained by the Constitution. Rather than just “D and E is a medically necessary procedure and today’s decision marks a troubling departure from settled rights” (not a direct quote). Um Ruthie, could you at least throw the 20-21st century’s Kunta Kente some aloe ?

    I should think of few things more terrifying than a human being within reach of the constitution, which would stay the hands of his oppressors and dull the executioner’s blade, but to be felled mere inches from its protection. Our charity-minded advocates fill the courtrooms protesting this injustice as to gitmo detainees uncertain of their constitutional status, at the risk that, upon their release, they will resume hostilities, yet we do it our of love for the Constitution. Yet the most innocent remain on the killing floor while we hide in fear from Constitutional realities, shielding ourselves with penumbras, cloaking ourselves in prior rulings, never apologizing, never acknowledging, secure only in the hollow invocation of stare decisis.

    don’t know really where I was going with all that malarchy, but I should get back to work.

  26. Sandy Underpants Says:

    Well first off, this is a medical procedure that doctors will still perform if it becomes necessary to save a patient’s life, the law be damned, because no one in a surgery room is going to give up the mother if she can be saved by doing it.

    Secondly, this procedure nearly never is done, and like most terrible things, I wish it never has to happen.

    Thirdly, this was political from the start by the republicans to take steps to outlaw abortion. Which is fine with me, but that’s what this is.

    Fourthly, “the right” for a woman to get an abortion, is the right for an individual to control their body, their life and their well-being. Yes I know, “what about the unborn”. Sorry, but the constitution doesn’t protect their pursuit of happiness, as they can’t pursue much when they’re totally inseparable or autonomous from the individual they are growing inside.

  27. 4-7 Says:

    It is about to become law in many states that young women receive a vaccine preventing cervical cancer. We are not allowed to injest many controlled substances. Suicide is a crime. The Constitution doesn’t put a bar on protecting one’s body, it prohibits unreasonable searches and seizures, laws abridging freedom of speech, some other stuff, and a right to due process before life, liberty, or property is removed. The Founding Fathers gave citizens the benefit of local control over the coming and going of their lives (and their bodies) as they would think it prudent to enact in law. Then they gave you a strong central government to protect you from invaders and prevent your localities from destroying each other with unhealthy competition unbecoming of a federal family. This country is largely dead. Now you have nearly unremediable constitutional law woven by an unanswerable branch (unless you can get 75% of 300 million people to disagree) that decides for you what is and is not part of the human body, what is and is not a life worthy of rights, and whether or not “well-being” should be a trump card against legitimate contrary interests.

    Of course, the states in the severality could have got these questions wrong, but that was the genius of it. Eventually, better ideas, more authentic freedoms would develop as people gravitated toward states honoring their preferences.

    Now we live and breathe (some of us anyway), at the pleasure of the Court, which eviscerated the federal interplay that served a unique separation of powers role.

    Wasn’t a perfect system, but I think its better than one based on constitutional law where the sky, not the document, is the limit.

    what do i know (qualifications erode 4-7s guilt as speaking).

  28. Andrew Says:

    Legislation banning partial-birth abortion may violate the Commerce Clause? That’s rich indeed. Someone please pass the weed.

  29. Anonymous Says:

    Now that’s funny ! (especially if you were commenting on last summer’s jurisprudence)

  30. USC 1L Says:

    back for a sec. I continue to love how PBA is called (as in the CNN auto post) “so-called” and “what some call”. Some people call that big fiery ball of gas in our solar system “the sun”. I also call the head of the Executive Branch of the United States “the President.” So when a doctor allows a fetus to pass halfway through the birth canal and into open air and then stabs it in the neck below the brain, suctions its life away, and then removes the remains, I say “partial birth” is pretty accurate. If you want to go with half-birth, I’ll stand wit ya. But “Dilation and Extraction” ? Hmmm. If you think that’s more “accurate” you must be the kind of person that calls to inform a friend of another’s heart attack and says “he had a midocardial enfarction (sp)”. : )

    Perhaps you should note that nobody disputes the terminology for the sun or the President or a heart attack. On the other hand, there is significant and heated disagreement about what to call this procedure.

    You may prefer that the media decide things. Others of us are happy when it demonstrates restraint.

  31. David K. Says:

    Significant disagreement? How can you disagree about it unless you have an agenda to push. Its pretty straightforward. The baby is partially through the birth canal, partially being born and then its aborted. There’s nothing confusing about it.

  32. USC 1L Says:

    ———-
    Significant disagreement?
    ———-

    By significant I was referring mostly to the size of the parties in disagreement. There are a lot of small groups that will dispute a commonly-accepted term. It was my intention to indicate that this is not such a situation.

    The AMA has said the term is not the proper medical term. As neither an opponent nor a proponent of the procedure, I consider the AMA’s disagreement significant.

    ——————–
    How can you disagree about it unless you have an agenda to push.
    ——————–

    An interesting stance since, according to Wikipedia, the term PBA was first coined by Pro-Life proponents:

    The non-medical term “Partial-birth Abortion” was coined in 1995 by pro-life congressman Charles Canady (R-Fla)[6] and is primarily used in political discourse — chiefly regarding the legality of abortion in the United States. The term’s first use may be from the original proposed Partial-Birth Abortion Ban, which circulated in discussion through the first half of 1995 and was formally introduced by the congressman on 14 June 1995.[7] Keri Folmar, the lawyer responsible for the bill’s language, says the term developed in early 1995 in a meeting between her, Charles T. Canady, and National Right to Life Committee lobbyist Douglas Johnson.[8] “Partial-birth abortion” was first used in the media on 4 June 1995 in a Washington Times article covering the bill.[9]

    ———————
    The baby is partially through the birth canal, partially being born and then its aborted. There’s nothing confusing about it.
    ———————

    By the same token, the cervix is dilated and then the intact fetus is extracted, hence intact dilation and extraction. “There’s nothing confusing about it.”

  33. thebeef Says:

    Ah yes, Dilation and Evacuation, the ol’ D&E. That’s the euphamism I prefer when I tear apart, limb from limb, an unborn fetus in the second trimester.

    On similar grounds, I believe when discussing the slave trade we should refer to it as “involuntary migration” and the death penalty as “nappy time.”

  34. USC 1L Says:

    —————————
    On similar grounds, I believe when discussing the slave trade we should refer to it as “involuntary migration” and the death penalty as “nappy time.”
    —————————

    As I said:

    “By significant I was referring mostly to the size of the parties in disagreement. There are a lot of small groups that will dispute a commonly-accepted term. It was my intention to indicate that this is not such a situation.”

  35. David K. Says:

    Um, intact dialation and extraction avoids the key elements of whats going on, and are focused more on the cervix as you yourself said. Any other time but when they are performing an abortion they call a baby coming through the mothers cervix by its name, birth. Infants as young as 22 weeks have been born and survived, yet pro-abortionist are fighting for the right to kill babies of that age through partial birth abortion. Argue all you want about whether life begins at conception, but don’t try and tell me with a straight face that babies that young, babies which can infact survive outside the womb, are not infact people, people who through this procedure would be murdered. And now they aren’t even willing to call it abortion, which by definition it is. Gee I wonder hy.

  36. USC 1L Says:

    David, all fascinating. However, all completely irrelevant to my initial and continued point. My discussion was limited to 4-7’s comments about the media’s phrasing. I stated that when there is substantial (perhaps a more clear choice than the previous significant; perhaps not) disagreement about something, it is desirable for the media to refrain from validating one side’s choice over another.

    I would hope you would agree that (1) the AMA and segments of the Pro-Choice side do constitute a substantial group that disagrees with the PBA terminology and (2) the proper term is debatable (note that I believe you can disagree with a position and yet still recognize it as arguable).

    I suspect you may have qualms with (2). If so, I find that unfortunate.

    The value, power, and importance of semantics is more evident in the abortion debate than anywhere else, I believe. Pro-Life. Pro-Choice. Anti-Life. Anti-Choice. Pro-Abortion. PBA. IDX.

    I firmly believe that the media has a duty to maintain neutrality in their coverage of the debate. That neutrality cannot be achieved without respect for the significance of word choice and issue framing.

  37. USC 1L Says:

    P.S., If I had to guess why a Pro-IDX person would disagree with your assertion that focus on the cervix is misplaced, I would guess that it has to do with the fact that the procedure takes 2-3 days to dilate the cervix before the so-called ‘extraction.’ Framed that way, then, the procedure appears to have two stages: the ‘dilation’ and the ‘extraction.’

    Of course, those who favor the PBA terminology (can’t really call them Pro-PBA people;)) would frame it more about the fetus/baby/life.

  38. Alasdair Says:

    USC 1L … consider this, then …

    There is a type of abortion, in the first trimester, where the mother is fed/given an abortifacient, such that the 1st trimester foetus dies, and is miscarried … it is already dead by the time ‘delivery’ is induced … this type of abortion is not at all threatened by the Supreme Court ruling …

    The Supreme Court ruling deals with an abortion after the end of the first trimester where the foetus is not so easily killed by an abortifacient without much more risk to the mother … so the foetus can all too easily still be alive and possibly viable when it enters the birth canal, which is why the procedure calls for the “stabs it in the neck below the brain, suctions its life away, and then removes the remains” part, to ensure that what is delivered *cannot* be viable … in at least one jurisdiction, the training technique had to be modified from a head-first delivery to a feet-first delivery, because the local state law already said that, during a delivery, if any part of the foetus’s head passed the outer part of the cervix, the doctor, by law, had to do his/her best to deliver a living baby … *that* requirement to change how they had previously carried out abortions was what swung *me* over to being an opponent of Partial-Birth Abortions while still supporting that the woman gets to choose in the 1st trimester …

    Do you better appreciate the difference, now ?


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