(merged) Appeals Court Overrules Va. Late-Term Abortion Ban

[Prosperity]

[keep in mind this is the 4th Circuit, probably the most conservative in the whole country]

Appeals Court Overrules Va. Late-Term Abortion Ban

http://www.washingtonpost.com/wp-dyn/content/article/2005/06/03/AR2005060301083.html

By Jerry Markon and Chris L. Jenkins

Washington Post Staff Writers

Saturday, June 4, 2005; Page A01

A federal appeals court yesterday struck down Virginia's law barring a controversial late-term abortion procedure, ruling that the measure is unconstitutional because it lacks an exception to safeguard a woman's health.

The 2 to 1 ruling by a panel of the Richmond-based U.S. Court of Appeals for the 4th Circuit upheld a lower court decision that threw out the law. The measure made it a crime for doctors to perform the procedure, which opponents have labeled "partial birth infanticide." The law, passed in 2003 over the objections of Gov. Mark R. Warner (D), was similar to the national ban approved by Congress the same year.

Yesterday's decision reignited some of the passions of a debate that has been waged nationally since numerous states passed laws, starting in the mid-1990s, banning the procedure. The U.S. Supreme Court ruled Nebraska's ban unconstitutional in 2000, and federal courts in three states have struck down the national ban. Those cases are on appeal.

Supporters of the Virginia law said they were disappointed in the ruling and probably would introduce an amended version during the next General Assembly session, in January. State Sen. Ken Cuccinelli (R-Fairfax) linked the Virginia decision to the national dispute over President Bush's judicial nominees in anticipation of a possible vacancy on the U.S. Supreme Court.

"We've got a major problem and it's not with the legislature, it's with the courts," Cuccinelli said. "Because of these sorts of rulings . . . we get a bunch of judges that want to write their own policy into the Constitution."

The panel wrote that its decision was based on U.S. Supreme Court decisions and noted that its obligation was to that precedent. Citing a previous decision, the panel wrote: "But even if 'abortion [is] offensive to our most basic principles of morality . . . that cannot control our decision,' for our obligation is to apply the Supreme Court's definition of personal liberty, 'not to mandate our own moral code.' "

Virginia Attorney General Judith Williams Jagdmann, whose office represents the state, noted in a statement that the decision was not unanimous. She said she is reviewing the ruling, but she did not say whether she will ask the entire 4th Circuit to review it.

Opponents of the Virginia law hailed the decision. "We are very pleased," said Priscilla Smith, director of the domestic legal program of the Center for Reproductive Rights in New York, which challenged the law on behalf of a Richmond doctor and a Richmond medical center. "This court was simply following precedent and ensuring that women's health is protected."

The 4th Circuit is generally regarded as the nation's most conservative appellate court, but yesterday's decision was written by Judge M. Blane Michael and joined by Judge Diana Gribbon Motz -- both appointees of President Bill Clinton, a Democrat. Judge Paul V. Niemeyer, an appointee of President George H.W. Bush, dissented.

Asked whether she was concerned that the full 4th Circuit could overturn the ruling, Smith said: "As long as the court follows Supreme Court precedent, we should have no problem."

The Virginia law had been the first in the nation scheduled to take effect after the U.S. Supreme Court struck down the Nebraska bill. The high court said that the Nebraska law was too broad and that it should have included an exception to allow the procedure when a woman's health was at risk -- the same issued cited yesterday by the 4th Circuit.

The Virginia General Assembly sought to avoid the constitutional issue by defining the procedure as infanticide rather than abortion. Supporters of Virginia's ban say it would stop the practice of killing infants moments after they are prematurely delivered. But the 2003 Virginia law did not include a health exception. Warner vetoed the law, and the legislature overrode his veto. Warner declined to comment on yesterday's ruling.

U.S. District Judge Richard L. Williams in Richmond blocked the law the day it was supposed to take effect in July 2003, calling it "a no-brain case" because of previous rulings. In 1998, a similar Virginia law was struck down as unconstitutional by another judge in the same court. Last year, Williams officially ruled Virginia's law unconstitutional.

The 4th Circuit yesterday cited this legal history in upholding Williams's ruling. The court said the Virginia law "does not provide an exception for instances in which an otherwise banned procedure is necessary, in appropriate medical judgment, to preserve a woman's health." Michael noted that the General Assembly had rejected proposed amendments that would have provided that exception in some instances.

In his dissent, Niemeyer said the majority's decision "is a bold new law that, in essence, constitutionalizes infanticide of a most gruesome nature."

Niemeyer accused the majority of basing its decision on "the color of political ideology" and said the ruling "amounts to a momentous step in disconnecting our law from accepted moral norms."

[twa]

I agree with the ruling ,even though safeguarding a womans health excemptions can be abused,there should always be lattitude given to protect the mothers life.

[Guest Gichin13]

Given the breakdown on the opinion, I would not be surprised if they appeal en banc to the entire 4th Circuit panel. I would also expect the en banc appeal decision to be the same based on Supreme Court case law.

[Fred Jones]

This is actually an interesting issue from a national standpoint.

The Republicans are slowly changing the makeup of the courts. If they remain in power they will start replacing Supreme Court Justices and many of the Appeals Court Justices. It will be interesting to see what happens if they start allowing these laws and possibly come close to or overturn Row vs Wade. I wonder how the general population will respond to that.

[Larry]

Originally posted by Liberty

[keep in mind this is the 4th Circuit, probably the most conservative in the whole country]

"We've got a major problem and it's not with the legislature, it's with the courts," Cuccinelli said. "Because of these sorts of rulings . . . we get a bunch of judges that want to write their own policy into the Constitution."

Not any more. Now they're a bunch of liberal activists who need to be replaced, by any means necessary.

[footballhenry]

I think it is a horrible practice, one that should be outlawed. For someone that has never seen the "illustrations" here is a website I found that has them

http://www.priestsforlife.org/partialbirth.html\

Now the reason I am curious to how many people truly defend this procedure is because Hilary Clinton herself vote against banning the act, along with other dems (if im not mistaken). I just truly do not see any reason for this barbaric act. It is pure evil. It truly makes me sick to my stomach. One could argue why abortion is okay, moreso the earlier it is in the pregancy but these acts of 'murder' (via Partial birth abortion) are beyond debate. Is there anyone here that actually supports or defends this sick act?

Isnt it true that Clinton set this act forth? (okaying partial birth abortion?)....regardless of party lines, I found this quote by Pres. Bush, is there anything wrong with it?

"I’m pleased that all of you have joined us as the Partial Birth Abortion Ban Act of 2003 becomes the law of the land. (Applause.) For years, a terrible form of violence has been directed against children who are inches from birth, while the law looked the other way. Today, at last, the American people and our government have confronted the violence and come to the defense of the innocent child."

My opinion is that we all should agree that this act should never be legalized again....

[Cdowwe]

Yea that makes me sick too. Hillary and her cronies feel its ok though, so it must be.

[Larry]

Just an uninformed opinion here (about someone else's motives on a subject), but the reason I keep hearing people give for opposing the legislation is because the legislation is (deliberatly) worder so vaguely that no one can tell exactly what it prohibits, and the penalties are so severe, that the (intended) effect of the laws will be to scare every doctor in the world away from performing any abortions, ever.

Sort of like the folks who "oppose banning AK-47s" because the actual law has been (deliberatly) worded so that it actually applies to everything from BB guns on up.

[Fred Jones]

Yes Larry, lets appoint all right wing conservative judges to every post. That would ruin the country. It is all about balance and moderation. I wish we could replace all the liberal judges and replace them with moderate, common sense, and fair judges.

[Destino]

It's stuff like this that fuels my belief that the right wing has no intention of stopping abortion. Odds are then anyone reading my post right now, already knew the courts have declared all anti-abortion legislation that did not contain a clause for a mothers health unconstitutional. Yet they continue to write laws that they know full well will fail in court. I suspect the gains from media attention in instances like this aid GOP politicians.

Great strides could have been made in the abortion battle had the GOP simply written the laws to pass judicial review. Use medical language (partial birth is a made up political term) provide for a mothers health, etc etc. But they won't. We will get to the end of the Bush full GOP control years and abortion will be unchanged.

Ridding the political field of the abortion issue would hurt the GOP in a major way. They simply can't afford not to have it be a major issue.

[Larry]

Originally posted by Destino

It's stuff like this that fuels my belief that the right wing has no intention of stopping abortion. Odds are then anyone reading my post right now, already knew the courts have declared all anti-abortion legislation that did not contain a clause for a mothers health unconstitutional. Yet they continue to write laws that they know full well will fail in court. I suspect the gains from media attention in instances like this aid GOP politicians.

Great strides could have been made in the abortion battle had the GOP simply written the laws to pass judicial review. Use medical language (partial birth is a made up political term) provide for a mothers health, etc etc. But they won't. We will get to the end of the Bush full GOP control years and abortion will be unchanged.

Ridding the political field of the abortion issue would hurt the GOP in a major way. They simply can't afford not to have it be a major issue.

I've also noted a tendancy in some laws passed, recently.

When Congress passed the Communication Decency Act, people were complaining about porn on the Internet. But what they passed was a bill that prohibited (going from memory) "any form of electronic communication which containes any material which is obscene, lewd, indecent, objectionable, or suggestive".

In short, they passed a law that made it a federal offense for my brother to phone his wife and say "This sales conference is boring. Why don't you fly up here and we can fool around?" (It also would've made the phone company giulty for failing to prevent the phone conversation from going through).

The folks who passed they law came right out and publicly admitted that the law basiclly prohibited everything, and agreed that many of the terms used (like objectionable and suggestive) actually have no legal definitions. They said their mission was to pass a law that banned everything, and then let the courts throw out the parts where the government went to far.

In short, they're now passing laws that even the people who voted for them don't want on the books, simply to score political points.

[Guest Gichin13]

Originally posted by Fred Jones

This is actually an interesting issue from a national standpoint.

The Republicans are slowly changing the makeup of the courts. If they remain in power they will start replacing Supreme Court Justices and many of the Appeals Court Justices. It will be interesting to see what happens if they start allowing these laws and possibly come close to or overturn Row vs Wade. I wonder how the general population will respond to that.

The thing to me is this type of statute, if properly drafted, is actually consistent with the Roe v. Wade case. That case stated that third trimester abortions were illegal absent some compelling health interest of the mother. If they put a restricted health based escape hatch in the statute, it would be enforceable.

The legislature keeps trying to close off the escape hatch to force overturning the Roe case and that is the subtext of the decision.

[footballhenry]

Originally posted by Larry

Just an uninformed opinion here (about someone else's motives on a subject), but the reason I keep hearing people give for opposing the legislation is because the legislation is (deliberatly) worder so vaguely that no one can tell exactly what it prohibits, and the penalties are so severe, that the (intended) effect of the laws will be to scare every doctor in the world away from performing any abortions, ever.

Sort of like the folks who "oppose banning AK-47s" because the actual law has been (deliberatly) worded so that it actually applies to everything from BB guns on up.

well here is a website I found that gives very detailed information about the language of the bill, the procedure and so on. After reading through much of it I am hard pressed to see what would cause anyone to not vote to ban this procedure, yet we all know "money talks", if u know what i mean..

http://www.nrlc.org/abortion/pba/PBAall110403.html

heres a site on Pres. Bush's side/comments of the matter

http://www.nrlc.org/abortion/pba/bushcommentpba102803.html

[bearrock]

Because the trimester framework under Roe v. Wade is no longer the law (replaced by viability framework of PP v. Casey), conservatives may have better luck at effectively banning abortion by advancing science rather than trying to reshape the make-up of the federal bench.

[NoCalMike]

Unless there is a provision that protects the mother's health/life, then it shouldn't be banned. Period.

[footballhenry]

Originally posted by NoCalMike

Unless there is a provision that protects the mother's health/life, then it shouldn't be banned. Period.

So your saying partial birth abortion SHOULDNT be banned?? could you explain more why you think this should be kept legal?

[bearrock]

It is not enough to merely include language saying that the procedure is allowed if necessary to save the mother's life. The procedure should also be allowed where partial birth abortion is the safest abortion procedure.

The bill is unclear on this point. The bill permits partial birth abortion only when the mother's life is threatened by physical disorder, physical illness, or physical injury (including condition caused by or arising from the pregnancy), but there is no exception where the mother's life is threatened by the abortion procedure itself. I suppose you could argue that if other abortion procedures threaten the mother's life, then the threat stems from a physical disorder rather than the procedure itself. But the bill doesn't make this point clear.

Furthermore, the bill doesn't allow partial birth abortion where it is the safest procedure but the risk of other procedure may not rise to threat to life, but merely injury or other complications.

Let us keep in mind that partial birth abortion is only allowed when abortion itself is allowed. This bill is regulating what procedures doctors may use to perform an abortion. If Congress wants to do that, they must have some legitimate reason to do so. Furthermore, they should include exceptions for situations where partial birth abortion is necessary (which they arguably do) or where partial birth abortion is the safest method.

[Thiebear]

If the courts say you have to include the health of the women than do it.... To do otherwise is killing children while playing games.....

I don't want "right wing" judges.... I want constitutional judges... The kind that don't look to other lands or polls as their marker....

[NoCalMike]

What bearrock said......

[stevenaa]

"Unless there is a provision that protects the mother's health/life, then it shouldn't be banned. Period."

What a default answer. If there were any life endagering conditions, they'd be discovered long before this procedure would be needed.

[footballhenry]

Originally posted by bearrock

It is not enough to merely include language saying that the procedure is allowed if necessary to save the mother's life. The procedure should also be allowed where partial birth abortion is the safest abortion procedure.

The bill is unclear on this point. The bill permits partial birth abortion only when the mother's life is threatened by physical disorder, physical illness, or physical injury (including condition caused by or arising from the pregnancy), but there is no exception where the mother's life is threatened by the abortion procedure itself. I suppose you could argue that if other abortion procedures threaten the mother's life, then the threat stems from a physical disorder rather than the procedure itself. But the bill doesn't make this point clear.

Furthermore, the bill doesn't allow partial birth abortion where it is the safest procedure but the risk of other procedure may not rise to threat to life, but merely injury or other complications.

Let us keep in mind that partial birth abortion is only allowed when abortion itself is allowed. This bill is regulating what procedures doctors may use to perform an abortion. If Congress wants to do that, they must have some legitimate reason to do so. Furthermore, they should include exceptions for situations where partial birth abortion is necessary (which they arguably do) or where partial birth abortion is the safest method.

Well, your post is interesting but if I am correct you are simply defending partial birht abortion to the extent that it may be the 'safest' in some cases?? Well there are risks in abortion regardless, and it seems to me that rationalizing an act such as this makes it that much worse. Why cant people call a spade a spade anymore? Why is everything so polarized into being 'explained' and 'rationalized'?

Well its okay that Couie buried that lil girl, he had a rough child hood, its okay that we stick scissors into the back of a babies head its "safe":rolleyes:

I realize that I am speaking on a lot of emotion but this subject truly irritates me to no end. Call it for what it is, wrong

[Guest Gichin13]

Originally posted by bearrock

It is not enough to merely include language saying that the procedure is allowed if necessary to save the mother's life. The procedure should also be allowed where partial birth abortion is the safest abortion procedure.

On the money.

It is clear that you are well read on this topic bear. I would have no problem with a bill that outlawed the procedure absent some medical support for it being best for mom's health in a given situation. That is the tough thing with absolutes in this arena.

[Guest Gichin13]

Originally posted by bearrock

Because the trimester framework under Roe v. Wade is no longer the law (replaced by viability framework of PP v. Casey), conservatives may have better luck at effectively banning abortion by advancing science rather than trying to reshape the make-up of the federal bench.

Viability was the initial concept of Roe v. Wade (part of the problem with the opinion as science advances).

I have to admit that my readings on the case law on this topic since I got out of con law and law school have been sketchy ... con law does not really matter too much actually practicing law unless you are in a couple narrow fields (criminal law/4th amendment, narrow con law practices).

Thanks for the cite there, I have heard of that case but have not focused on it too much.

[bearrock]

Originally posted by footballhenry

Well, your post is interesting but if I am correct you are simply defending partial birht abortion to the extent that it may be the 'safest' in some cases?? Well there are risks in abortion regardless, and it seems to me that rationalizing an act such as this makes it that much worse. Why cant people call a spade a spade anymore? Why is everything so polarized into being 'explained' and 'rationalized'?

Well its okay that Couie buried that lil girl, he had a rough child hood, its okay that we stick scissors into the back of a babies head its "safe":rolleyes:

I realize that I am speaking on a lot of emotion but this subject truly irritates me to no end. Call it for what it is, wrong

I'm simply saying that while Congress may want to ban certain procedures they think are despicable, they should put in exceptions so that such procedures can be used when it is the best procedure to use.

Now, if your stance is that abortion itself is wrong, then that's a different discussion. But if you're saying that abortion should be legal (or accept that abortion is legal) then this discussion is about when partial birth abortion can be used. It appears that objection to partial birth abortion is the gruesome nature of the procedure. But is this objection enough to outweigh someone's health or life? This is obviously where the value judgment comes in. I say such precedure, as gruesome as it is, is justified when it is the best means of saving someone's life or preserving someone's health.

[Thiebear]

Rule1: When you write the law you are biased to begin with and it seeps into the law.. The earliest born child was 23 weeks soooo partial birth can then extend to that point scientifically....

Thats only 5 months... ooops...

I personally don't see (Partial Birth) as real due to modern technology with C-section and such.. the baby is done keep the scissors away....

Now to vaguely write a law that constitutionally can't stand up is fraud/waste/abuse of your time and everyone elses... Just keep it short and simple.

No starting a birthing session w/scissors to the head if the mothers health is not at stake...