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PBA Ban Unconstitutional. Again.

Jill

Figure it out, kids (pdf).

The Ninth Circuit Court ruled on Planned Parenthood v. Gonzalez, and, unsurprisingly, that the so-called Partial Birth Abortion Ban is illegal. According to the FindLaw summary:

Planned Parenthood v. Gonzales, No. 04-16621 (9th Cir. January 31, 2006)
The Partial-Birth Abortion Ban Act of 2003 is unconstitutional since it: 1) lacks the
health exception required of all abortion regulations in the absence of a medical
consensus, that the prohibited procedure is never necessary to preserve women’s health;
2) imposes an undue burden on a woman’s right to choose a previability abortion; and 3)
is impermissibly vague. The appropriate remedy for the serious constitutional flaws in
the Act is enjoining the enforcement of the statute in its entirety.

Well knock me over with a feather.

Thanks to Dad for the link.

28 thoughts on PBA Ban Unconstitutional. Again.

  2. Where in the Constitution does it say that bans on abortion must have health exceptions?

    Where in the Constitution does it say that abortion should be banned?

  3. The 9th is the most frequently reversed federal circuit court.

    I’m just sayin’.

    I think it will be interesting to see whether SCOTUS decides to rule on this issue in Gonzales v. Carhart. The Roberts court has thus far has been quite cautious and incremental in its decisions. I wonder if it will want to tackle such a contentious question so shortly after a new associate and Chief Justice have been confirmed. If it does take the case, the outcome will hinge on Roberts and Alito, since Kennedy, Scalia, and Thomas are sure votes to uphold the ban, while Stevens, Breyer, Ginsburg and Souter are certain to go the other way. I have a feeling that folks on both sides of the issue will not be entirely pleased by the way the case comes out.

  4. Jon, I think your professed uncertainty about Alito is disingenuous. You can drop the act; he got confirmed. We all know he’s a vote to reverse Roe, and certainly a vote for any restriction on abortion. The outcome turns on Roberts and Kennedy, but mostly Kennedy.

  5. Andrew, Justice Douglas, writing for the Court, has your answer:

    The … specific guarantees in the Bill of Rights have penumbras, formed by emanations from those guarantees that help give them life and substance. Various guarantees create zones of privacy. The right of association contained in the penumbra of the First Amendment is one, as we have seen. The Third Amendment in its prohibition against the quartering of soldiers “in any house” in time of peace without the consent of the owner is another facet of that privacy. The Fourth Amendment explicitly affirms the “right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures.” The Fifth Amendment in its Self-Incrimination Clause enables the citizen to create a zone of privacy which government may not force him to surrender tohis detriment. The Ninth Amendment provides: “The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people.”

    The Fourth and Fifth Amendments were described… as protection against all governmental invasions “of the sanctity of a man’s home and the privacies of life.”

    We have had many controversies over these penumbral rights of “privacy and repose.” These cases bear witness that the right of privacy which presses for recognition here is a legitimate one.

    The present case, then, concerns a relationship lying within the zone of privacy created by several fundamental constitutional guarantees.

    Griswold v. Connecticut, 381 U.S. 479 (1965).

  6. Jon, I think your professed uncertainty about Alito is disingenuous.

    I don’t appreciate being accused of disingenuousness, thanks. I’ll be happy to extend the same courtesy to you. Unless you’ve suddenly turned clairvoyant, you can’t read my mind any more than you can read Alito’s.

    I’ll chalk it up to you feeling salty over the confirmation, Thomas, since our exchanges have generally been civil in the past, and I’d like them to stay that way.

  7. Jon, I respectful and not merely civil to you because you’re not the giant asshole that some conservative commenters are, and I guess “disingenuous” is too harsh a word, but do you really think there’s a large chance that Alito would not vote to reverse Roe, even after he very pointedly refused even to follow Roberts’ lead in calling it “settled law”? I can’t read Alito’s mind, but I sure can interpret his remarks. Wouldn’t you allow that Alito appears to be a likely vote to reverse Roe?

  8. Doesn’t it take 4 Justices to decide to take a case? Assuming Roberts would want to revisit or redefine Roe, they have the 4 votes. Just have to see how Kennedy would rule. I can see the 4 just waiting for Stevens to die before they take an abortion case. After all, why wake America up to the fact that our Supreme Court is probably 1 vote away from overturning Roe. Just don’t revisit Roe and then slip in another Alito. Then it’s a right winger’s wet dream. For decades. We already have 4 very conservative Justices. And the newest two are damn young.

    We’re doomed.

  10. The 9th circuit ruling on this means diddly squat now that Alito has been confirmed. O’Conner was the swing vote on 5-4 Partial Birth Abortion cases before the Supreme Court.

    The new makeup of the Supreme Court virtually guarantees that Partial Birth Abortion bans will be upheld.

  11. Here’s hoping Kennedy’s conscience continues to grow.

    And yeah, Jon. You’re either being disingenuous or over-credulous/uncritical. Take your pick.

  12. Wouldn’t you allow that Alito appears to be a likely vote to reverse Roe?

    We’ve played this game before, and to be honest, I am not willing to say that I think I know, with absolute certainty, how Alito will rule on abortion. Is he more likely than not to vote to reverse Roe? Maybe. But then again, the same thing was said about Kennedy, and even Souter. O’Connor was even pegged as a likely vote to overturn Roe for her first 10 years on the court, right up until Casey. So really, I don’t see what the point would be in pretending that I have some sort of mystical insight into Alito’s thinking. But I do believe that however he rules, it will be done in good faith after a serious weighing of the constitutional issues. Based on his record, that is the kind of judge we know him to be, and that is why he deserved to be confirmed.

  14. But Jon, Alito was selected specifically because the base insisted that they not be betrayed on Roe like they were by O’Connor, Kennedy and Souter. While I believe those three probably never said, even behind closed doors, how they would rule, I expect the administration made it a condition precedent for Alito’s selection that they be certain he would reverse.

  15. Pingback: As fun as any misogyny round-up can be at Pandagon

  17. But Jon, Alito was selected specifically because the base insisted that they not be betrayed on Roe like they were by O’Connor, Kennedy and Souter. While I believe those three probably never said, even behind closed doors, how they would rule, I expect the administration made it a condition precedent for Alito’s selection that they be certain he would reverse.

    Again with that clairvoyance! I don’t know how you can say Alito was chosen “specifically” because the base didn’t want to be betrayed on Roe. I followed the whole Miers imbroglio pretty closely, and that was not the message that being sent. I personally think that the motivation in picking Alito was to have an impeccably credentialed, mainstream conservative jurist with some distance from the administration, so the charges of “cronyism” and “unqualified” would be taken off the table. They also wanted someone who wasn’t an obvious fire-breather sure to draw a serious filibuster effort, e.g. Jones, Rogers-Brown, or Garza. Alito fit the bill on all those points.

    Again, this is really all just pointless speculation, since neither you nor I are privy to what kind of deliberations went on behind the scenes. But I doubt Alito is that ethically challenged that he’d commit himself, even behind closed doors, to overturning Roe.

    And as a final point- I know this is a feminist blog, so the discussion on judicial nominations is bound to revolve around abortion, but for crying out loud, there’s more to constitutional jurisprudence than Roe and Casey. I for one am very interested to see what happens with the campaign finance cases coming down the pipeline- a lot of people on both sides of the aisle would like to see the pro-regulation elements ofMcConnell v. FEC reversed, and it’s now a distinct possibility.

  18. I know this is a feminist blog, so the discussion on judicial nominations is bound to revolve around abortion, but for crying out loud, there’s more to constitutional jurisprudence than Roe and Casey.

    I know this is a blog that focuses on women’s issues, but why are you guys focusing on women’s issues?!

  19. Yep, I’m disturbed at the barely concealed glee that soon women who may die from childbirth or from having a dead fetus rattling around inside them getting all rotten and infected will have to suffer under the new laws. Fucking lovely.

  20. I know this is a blog that focuses on women’s issues, but why are you guys focusing on women’s issues?!

    Or wondering why women and girls might be treated as property in strip-search cases, or why employees might not have rights, or why someone who belonged to an organization that wanted to keep women and minorites-that-no-longer-included-Italians-or-Catholics-so-we-can-pull-the-ladder-up-now might be a problematic pick as Supreme Court justice, or, you know, what the fuck ever.

  21. Jon, this isn’t a law blog. Go read Volokh if that’s what you’re looking for. I’d love posts about Scotland and boxing, but I don’t expect to find them here.

  22. Look, like I said, I expect abortion to be topic number one for you folks, I just think that our public discourse suffers when we view the court solely through the prism of Roe and treat the court as nothing more than the Abortion Debating Society. Issues like eminent domain, affirmative action, and even campaign finance (NOW and NARAL were generally supportive of the anti-regulation side in McConnell) all have an impact on women, and I don’t think it would be such a horrible thing to broaden the scope of the discussion. Apparently you all don’t agree, which is fine. It’s your place, not mine.

    And zuzu, do you even believe your own hyperbole anymore?

  24. and I don’t think it would be such a horrible thing to broaden the scope of the discussion

    Funnily, the conservatives who support Bush’s SCOTUS policies don’t seem to agree with you. They know that even eminent domain doesn’t rile up the base like abortion. If Alito had been pro-Roe but solidly conservative on eminent domain, affirmative action and campaign finance, think he would have gotten the nod?

  26. Yup, it’s conservatives who are monolithic. In this article in the LA Times yesterday, , Tim Wildmon of the rightwing American Family Association said:

    “Most people’s eyes glaze over when you start talking about billions and trillions of dollars,” said American Family Assn. President Tim Wildmon. “Abortion? Gay marriage? Everyone understands that.”

  27. Thomas and zuzu: I never said I “don’t like the discussion” here. Clearly I get something out of it, otherwise I wouldn’t keep coming back. And yes, of course, I’m under no impression that this is a law blog. But to the extent there are discussions here about law and SCOTUS, I don’t see the harm in bringing in other law-related issues that affect women. But like I said, I don’t run the show, so you can keep your focus as narrow as you’d like.

  28. Jon, it’s also not true that the only legal issues have been repro-rights related. For example, when I took a guest-turn at the wheel on Alito, I addressed the Commerce Clause. But I expect that law posts here will be generally limited to women’s and GLBT issues, and those will probably gravitate towards marriage equality and repro rights, because they are the marquee issues.

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