Daily Archives: October 31, 2005

Better Middle Than Late

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I’ve been reading and listening to comments on nominee Sam Alito, including mention of the Planned Parenthood v. Farmer decision mentioned below. And I’ve noticed that rightie commenters and most “journalists” persistently make a mistake when they talk about this decision. That mistake is to say that the case in question was about a ban on late-term abortion. It was not. It most definitely was not.

The law in question banned “partial-birth” abortion. Anti-privacy forces confuse the issue by insisting that “partial birth” and “late term” mean the same thing. To me “late-term” implies that the pregnancy is almost full term. But the procedure that righties call “partial birth”–intact dilation and extraction (D&X) and dilation and evacuation (D&E)–are procedures performed mostly (if not entirely) in the second trimester, which reasonably would be considered MID term.

According to the written decision, 80 to 90 percent of abortions performed after the first trimester are D&E abortions. These are commonly done between 13 and 20 weeks’ gestation. The D&X is a less common variation of the D&E that involves collapsing the skull and removing the fetal body intact, as opposed to retrieving it in several pieces via a D&E. The D&X variation reduces the risk of cervical laceration and also provides an intact body, which might be required for diagnostic purposes.

These are not the only procedures available for second-trimester abortion. After 16 weeks’ gestation, the most common procedure used is induction, which involves injecting a lethal substance into the uturus and then inducing labor. The fetus might also be removed by hysterotomy, which is like a C-section, and sometimes by hysterectomy–removal of the uturus.

For reference: The second trimester is from weeks 13 to 26. The third trimester is weeks 27 to 42. A fetus is potentially viable only after the 23rd week, and that’s iffy. Babies born after at least 27 weeks’ gestation usually survive. According to the Alan Guttmacher Institute, only 1.4 percent of abortions in the U.S. are performed after 21 weeks’ gestation. I haven’t been able to find reliable data on third trimester abortions.

Anyway, now that we’ve got the “late-term abortion” nonsense out of the way– like other such laws, the act nullified in Planned Parenthood v. Farmer did not use medical terms, but instead used the term “partial birth abortion,” and defined that term in such a way that physicians testified they couldn’t tell exactly what was being banned. Further, the act appeared to ban abortion procedures on a “living” fetus, meaning a fetus with a discernible heartbeat, which could be as early as seven weeks’ gestation. Not exactly “late-term.”

And, if in fact the law banned only D&E and D&X procedures, it didn’t ban abortions at all, because other procedures are available. The righties never seem to notice that. It’s also beyond belief that righties can’t manage to write a law banning D&E or D&X procedures that might get approved by a court. I believe all they’d have to do is use actual medical terms and definitions and provide a “life or health of the mother” exception. But state legislatures keep passing essentially the same muddled, sloppily worded mess, and courts keep slapping it down. Makes me wonder if they actually don’t want it to become law; they just like putting on a show for the voters.

Regarding Judge Alito’s decision, provided in the last post, he was being clear that he felt it was his duty as a LOWER court judge to find according to existing case law. However, the law in question was a bare-assed attempt to sneak a total abortion ban on the books by means of bad phraseology. Any judge going along with the gag and approving legislation-by-deceit would seem pretty “activist” to me.

Also: From The Mahablog archives–why a “right to privacy” IS in the Constitution.

Update: Hunter gently explains why he disagrees with a particular conservative talking point. Billmon discusses Alita’s Casey dissent. Digby looks at the “strategy” behind abandoning Roe v. Wade. Fafblog does Hallowe’en. And the Rude One is, well, rude.

Pass This Along to the Righties

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Figure this one out: In July 2000 SCOTUS nominee Samuel Alito, sitting on the U.S. Court of Appeals for the Third Circuit, voted that a law banning “partial birth” abortion was unconstitutional.

This doesn’t mean I trust him not to mess with Roe v. Wade, but please pass this along to the righties. Let it mess with their heads.

The case was Planned Parenthood of Central New Jersey v. Farmer. I just found this and I need to read it through to understand exactly what the problems were with this law, but here is Alito’s concurrence with the decision (note the phrase, “our responsibility as a lower court):

ALITO, Circuit Judge, concurring in the judgment.

I do not join Judge Barry’s opinion, which was never necessary and is now obsolete. That opinion fails to discuss the one authority that dictates the result in this appeal, namely, the Supreme Court’s decision in Stenberg v. Carhart, 2000 WL 825889 (U.S. June 28, 2000). Our responsibility as a lower court is to follow and apply controlling Supreme Court precedent. I write briefly to explain why Carhart requires us to affirm the decision of the District Court in this case. This is an appeal by the New Jersey State Legislature from a decision of the United States District Court for the District of New Jersey holding the New Jersey Partial-Birth Abortion Ban Act of 1997, 2A:65A-5 et seq., unconstitutional and permanently enjoining enforcement of the Act. Planned Parenthood of Central New Jersey v. Verniero, 41 F. Supp. 2nd 478 (D.N.J. 1998). The New Jersey statute closely resembles statutes enacted in recent years in many other states.

On January 14, 2000, the Supreme Court granted certiorari to review the decision in Carhart v. Stenberg, 192 F.3d 1142 (8th Cir. 1999), cert. granted, 120 S.Ct. 865 (2000), which presented the question of the constitutionality of a similar Nebraska statute. The Supreme Court recently held that the Nebraska statute is unconstitutional. Stenberg v. Carhart, 2000 WL 825889 (U.S. June 28, 2000).

The Court based its decision on two grounds. First, in Part II-A of its opinion, the Court held that the Nebraska law is unconstitutional because it lacks an exception for the preservation of the health of the mother. See 2000 WL 825889, *9-*14. Second, in Part II-B of its opinion, the Court held that the Nebraska statute is unconstitutional because it imposes an undue burden on a woman’s ability to choose the method most commonly used for second trimester abortions, the “dilation and evacuation” (D & E) method. See 2000 WL 825889, *14-*18.

Under Carhart, the decision of the District Court must be affirmed. First, the New Jersey statute, like its Nebraska counterpart, lacks an exception for the preservation of the health of the mother. Without such an exception, the New Jersey state is irreconcilable with Part II-A of Carhart.

Second, the Supreme Court’s holding in Part II-B of Carhart is also applicable here. As noted, in that portion of its opinion, the Court held that the Nebraska statute applied, not only to the “dilation and extraction” or D & X procedure, but also to the more commonly used D & E procedure. The wording of the relevant provisions of the Nebraska statute is nearly identical to that of the New Jersey statute. Thus, the Supreme Court’s holding in Part II-B of its opinion in Carhart must be regarded as controlling in this case.

In light of this interpretation of the New Jersey statute, the Legislature’s argument that the plaintiffs lack standing must fail. As noted above, the New Jersey statute must be interpreted, in light of Carhart, as applying to the D & E procedure, and the plaintiff physicians in this case perform that form of abortion. The Legislature’s argument that this case is not ripe because the New Jersey statute has not been authoritatively interpreted by the state courts or state enforcement officials must also fail. In view of the interpretation in Carhart, there is no reason to wait for interpretation by state officials or judges.

In a post-Carhart filing, the New Jersey Legislature has urged us to certify questions concerning the interpretation of the New Jersey statute to the state supreme court. In Carhart, however, the Supreme Court of the United States turned down a similar request for certification by the Attorney General of Nebraska. 2000 WL 825889, *18. The decision of the Supreme Court of the United States to deny certification in Carhart must be regarded as controlling here, both with respect to the Legislature’s request for certification and with respect to its closely related argument that the District Court erred in refusing to abstain pursuant to Railroad Commission v. Pullman Co. , 312 U.S. 496 (1941).

In conclusion, Carhart compels affirmance of the decision of the Distric Court.

I will comment further once I’ve had a chance to digest this.

Alito? Boo!

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I’m sorry about the page display problem. The site looks fine in Firefox, but is scrambled up in Internet Explorer. I’ll try to get it fixed today. If you can’t wait, though, download Firefox (free).

Anyway–Reuters is reporting that Bush is going to nominate U.S. federal appeals court judge Samuel Alito to replace Sandra Day O’Connor on the Supreme Court. RedState is thrilled. Therefore, be very afraid.

Here’s the scoop from Law.com:

In ACLU v. Schundler, Alito wrote the majority opinion holding that a city’s holiday display that included a créche and a menorah did not violate the establishment clause of the First Amendment because it also included secular symbols such as Frosty the Snowman and a banner promoting racial diversity.

On abortion, Alito was the lone dissenter in Planned Parenthood v. Casey, in which the 3rd Circuit struck down a Pennsylvania law that required women seeking abortions to inform their husbands.

Alito argued that the Pennsylvania law’s restrictions should have been upheld, saying “the Pennsylvania Legislature could have rationally believed that some married women are initially inclined to obtain an abortion without their husbands’ knowledge because of perceived problems — such as economic constraints, future plans or the husbands’ previously expressed opposition — that may be obviated by discussion prior to the abortion.”

In other words, husbands can veto a woman’s decision to terminate a pregnancy. We’re just cows, after all.

The case went on to the Supreme Court, resulting in a 6-3 decision that reaffirmed Roe v. Wade and struck down the spousal notification provision of the law. But late Chief Justice William Rehnquist, in his dissent, quoted Alito’s underlying dissent and said he agreed with his reasoning.

Other Alito rulings have made it easier for employers to practice race and sex discriminate. What a guy. No wonder the Right loves him.

Think Progress has more.

Update: It’s official — Alito is the choice. We could have a fight on our hands, says CNN:

Senate Minority Leader Harry Reid — a Nevada Democrat who had recommended Miers — said Sunday he feared Bush would “try to placate the right wing” with his next nominee, “and that’s a mistake.”

“If he wants to divert attention … he can send us someone who’s going to cause a lot of problems,” Reid told CNN, saying the “radical right wing” was “pushing all his buttons, and he may just go along.”

Reid said the choice of Alito “would create a lot of problems.”

“That is not one of the names that I’ve suggested to the president,” he said. “In fact, I’ve done the opposite.”

At least, if the Dems put up a fight, righties can no longer argue that the president’s nominee automatically deserves a vote in the Senate. Harriet Miers never got one.