Supreme Court: Abortion, again.

The Supreme Court steps back into the abortion arena Wednesday. The issue is not the right to have an abortion but whether Congress can ban certain methods of abortion.

http://www.npr.org/templates/story/story.php?storyId=6450160


What's on trial hear is dilation and evacuation abortion (aka partial-birth to anti-abortionists). Congress decided a few years ago that there are no instances where the procedure is necessary to preserve the life of the host. Lower courts have been disagreeing, preferring to actually take medical expert opinions on the subject into account. Now, the Supreme Court is going to hear arguments. I wonder what the outcome will be now that Bush-puppets are in place.

That's the first decent story on the issue that I have seen so far, so thank you for the link.

What's at issue is actually a variation on D & E, which they call D & X or "intact" D & E. D & Es are the type of procedure performed for 2nd-trimester abortions. They don't involve partial delivery of an intact fetus (the so-called partial birth abortion). There aren't many obstetricians who feel comfortable doing the D & X, but the wording of the ban at issue in the Supreme Court sounds like it is vague enough that docs who do D & Es fear that they may face prosecution if it passes. While D & Xs represent, I believe, less than 1% of abortions performed in this country every year, the inability to obtain or perform D & Es would affect many more. Roughly 10% of abortions are the 2nd trimester D & E type.

In one case outlined in a friend-of-the-court brief, for instance, it took until the 20th week of pregnancy before doctors could tell from diagnostic tests that one woman was carrying a child with such serious defects that the infant, if it lived to term, would not survive afterward. Meanwhile, the woman had developed uterine tumors and her health was at risk. The woman, who asked that we not use her name, said her understanding was that the congressionally enacted ban "would be defined to include the procedure that I had."

Abortion opponents contend that even if there are some cases where the banned procedure would be safer for the woman, the number of those cases is "marginal." And, as the National Right to Life Committee's Bopp puts it, that "slight safety increase" has to be "balanced against" the potential for life.

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Marginal? Marginal is apparently how you feel about women such as this one. On behalf of those women, I say f- you.

What good is a mother to that unborn, non-viable fetus if she dies because you make her stay pregnant? Should they both die so that you can feel better in your moral superiority?

But Planned Parenthood's Gartner counters that there is no balancing when you are talking about a fetus that cannot survive, no matter how the procedure is done. And since the fetus cannot survive until after the second trimester, she says, "There's no legitimate reason for the government to force the woman to have a less than optimally safe abortion procedure."

That, however, is not what Justice Anthony Kennedy said in his impassioned dissent to the Supreme Court's ruling six years ago. Kennedy, who is widely viewed as the deciding vote in this case, said that the court majority was "closing its eyes to a law expressing the will of the people that medical procedures be governed by moral principles," based on "the intrinsic value of human life, including the life of the unborn."

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Hey, theocrat-disguised-as-judge, how about the intrinsic value of the mother's life? Or do your moral principles not extend to her?

Read the transcript of the oral arguments from the Supreme Court's web site. Be advised that some of the discussion is graphic and unpleasant.

http://www.supremecourtus.gov/oral_arguments/argument_transcripts/05-380.pdf
http://www.supremecourtus.gov/oral_arguments/argument_transcripts/05-1382.pdf

From the NPR link above:

...the federal ban does not use medical terms. It uses lay terms, and it outlaws any overt action that would terminate life for a fetus once it is outside the womb to the point of the naval. So widespread is medical opposition to the law that the American Medical Association has withdrawn its initial endorsement of the statute.

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(Boliding mine)

Oh that makes sense. We all know that life begins the nanosecond your naval hits the air.

Brown said:

Read the transcript of the oral arguments from the Supreme Court's web site. Be advised that some of the discussion is graphic and unpleasant.

http://www.supremecourtus.gov/oral_arguments/argument_transcripts/05-380.pdf
http://www.supremecourtus.gov/oral_arguments/argument_transcripts/05-1382.pdf

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Very interesting. I read the first one and part of the second. It's fascinating to see how they work through things. It made me feel better to see that, actually, so thanks.

Katana said:

Very interesting. I read the first one and part of the second. It's fascinating to see how they work through things. It made me feel better to see that, actually, so thanks.

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The best part of reading SCOTUS opinions is that you realize all of the justices are extremely intelligent, witty, and rational...even the ones you disagree with. They all got to where they are at least partially on merit. It is nothing like Congress.

KingMerv00 said:

The best part of reading SCOTUS opinions is that you realize all of the justices are extremely intelligent, witty, and rational...even the ones you disagree with. They all got to where they are at least partially on merit. It is nothing like Congress.

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Exactly. That's why it actually calmed me down about the whole thing. There were several instances where justices made comments about Congress a mocking tone that I rather enjoyed, too.

If you are so inclined, you may find some of the briefs here:

http://supreme.lp.findlaw.com/supreme_court/docket/2006/november.html#05-380
http://supreme.lp.findlaw.com/supreme_court/docket/2006/november.html#05-1382

A few notes about the oral arguments:

First, Justice Alito asked no questions at all. Justice Thomas (whose typical preference is to say nothing) was not even present at the argument. Justice Scalia asked a few questions, but they were facile and not indicative of an interest in exploring a deeper understanding the issues. The "conventional wisdom" is that these three justices are pretty much guaranteed to vote to uphold the statue. It would be nice if they at least made some sort of public effort to demonstrate an interest in the intricacies of the issues.

Second, the questions from Justices Kennedy, Souter, Ginsburg and Breyer (and to a lesser extent, from Chief Justice Roberts and Justice Stevens) tended to be very practical, rather than purely academic. This is a good sign, as it indicates that some justices think ideology is not as important as reality. It suggests that, regardless of political inclination, most members of the Court are trying to explore ways that the law can apply to the real world, with real people who are having real problems.

Third, it is evident that Justice Kennedy will likely be the pivot Justice. Whether the statute is upheld or not, he is perhaps the leading contender to author the Court's opinion (assuming that the Court is able to render an "opinion"--in which five or more justices agree on the result and the rationale--rather than a "judgment"--in which five or more justices agree on the result but fewer than five agree on the rationale). In the 2000 case of Stenberg v. Carhart, Justice Kennedy took the position that a Nebraska "partial birth abortion" statute was constitutional. In that case, Justice Kennedy was in the minority. Justice Kennedy is therefore faced with something of a dilemma. If he "switches sides" and finds the statute invalid, he will have to defend himself against his own words in his 2000 dissent (which Justice Scalia would certainly throw back at him). If Justice Kennedy votes to uphold the statute, on the other hand, he will have to find a way to distinguish or overrule the 2000 decision, or otherwise bypass its stare decisis effect.

Brown said:

A few notes about the oral arguments:

First, Justice Alito asked no questions at all. Justice Thomas (whose typical preference is to say nothing) was not even present at the argument. Justice Scalia asked a few questions, but they were facile and not indicative of an interest in exploring a deeper understanding the issues. The "conventional wisdom" is that these three justices are pretty much guaranteed to vote to uphold the statue. It would be nice if they at least made some sort of public effort to demonstrate an interest in the intricacies of the issues.

Second, the questions from Justices Kennedy, Souter, Ginsburg and Breyer (and to a lesser extent, from Chief Justice Roberts and Justice Stevens) tended to be very practical, rather than purely academic. This is a good sign, as it indicates that some justices think ideology is not as important as reality. It suggests that, regardless of political inclination, most members of the Court are trying to explore ways that the law can apply to the real world, with real people who are having real problems.

Third, it is evident that Justice Kennedy will likely be the pivot Justice. Whether the statute is upheld or not, he is perhaps the leading contender to author the Court's opinion (assuming that the Court is able to render an "opinion"--in which five or more justices agree on the result and the rationale--rather than a "judgment"--in which five or more justices agree on the result but fewer than five agree on the rationale). In the 2000 case of Stenberg v. Carhart, Justice Kennedy took the position that a Nebraska "partial birth abortion" statute was constitutional. In that case, Justice Kennedy was in the minority. Justice Kennedy is therefore faced with something of a dilemma. If he "switches sides" and finds the statute invalid, he will have to defend himself against his own words in his 2000 dissent (which Justice Scalia would certainly throw back at him). If Justice Kennedy votes to uphold the statute, on the other hand, he will have to find a way to distinguish or overrule the 2000 decision, or otherwise bypass its stare decisis effect.

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Thanks for sharing your thoughts, Brown.

Any guesses as to which way he might go?

Katana said:

Thanks for sharing your thoughts, Brown.

Any guesses as to which way he [Justice Kennedy] might go?

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I wish I had more time to go into some of the history, legal landscape and arguments associated with these disputes. Sadly, I just don't have the time right now. So what I'm going to say I will say some references but without as many as I'd like.

Basically, Justice Kennedy is looking for a way out. In the 2000 Stenberg case, Justice Kennedy strongly supported deference to the legislature (in this case, the Nebraska state legislature). "Courts are ill-equipped to evaluate the relative worth of particular surgical procedures," said Justice Kennedy. "The legislatures of the several States have superior factfinding capabilities in this regard." In general, the Supreme Court offers a degree of deference to the factfinding of Congress as well (such factfinding is sometimes charitably called "legislative factfinding").

What the U.S. Congress did in enacting its statute was to perform a whole bunch of legislative factfinding. There were several such legislative facts found, but perhaps the most pointed one is this: The Congress "found" that the procedure in question is "never necessary to preserve the health of a woman." Never.

In the lower courts, there was quite a bit of evidence indicating that some of the facts found by Congress were, shall we say, questionable.

In Stenberg, the factual record had some holes in it, and even Justice Kennedy said as much, citing matters supported or unsupported by expert testimony in the lower courts. But in the pending cases, the factual record is, in the words of the Solicitor General, "more robust." Justice Stevens inquired several times into whether some of the legislatively found facts were really legitimate, in light of the evidence in the record. "General Clement," he asked the Solicitor General, "are not some of the findings by Congress clearly erroneous?"

Justice Breyer observed that there was evidence presented in court that Congress's factfinding was right, but there was also evidence presented that it was wrong. Justice Breyer wondered whether, if medical opinion is divided, whether this is really a matter where Congress or the courts ought to be taking inflexible sides.

This notion of having government substitute its judgment in a matter of legitimate medical debate--as supported by the evidentiary record--might be distasteful to Justice Kennedy. Yet in Stenberg, Justice Kennedy asserted that having government making such a judgment is allowed, and quoted precedent saying that "disagreements among medical professionals 'do not tie the State's hands in setting the bounds of ... laws. In fact, it is precisely where such disagreement exists that legislatures have been afforded the widest latitude.'"

The Supreme Court is not a group of medical doctors. Justice Kennedy would almost certainly be quick to acknowledge that, although he has done considerable research about the procedures in question, he is far from qualified to be an expert on the subject. One has to wonder whether he would rule that the Court should simply pretend that Congress, which likewise is not a group of medical doctors and whose motivatations were dominated by non-medical considerations, actually is in the best position to make such medical judgments. (See Dahlia Lithwick's column for her take on this point.)

One "way out" for Justice Kennedy is to pursue differences in the evidence in the factual records of the present cases and in the factual record of the 2000 case. The majority in the Stenberg case said:

The upshot is a District Court finding that D&X significantly obviates health risks in certain circumstances, a highly plausible record-based explanation of why that might be so, a division of opinion among some medical experts over whether D&X is generally safer, and an absence of controlled medical studies that would help answer these medical questions. Given these medically related evidentiary circumstances, we believe the law requires a health exception.

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The "record" and "evidentiary circumstances" were crucial in Stenberg, and they will probably be just as crucial in the two cases argued today. Justice Kennedy may have a basis for asserting that the record supports a health exception, and thus distinguish his 2000 dissent. This is the perhaps the best way out, and Justice Kennedy may very well take it.

I previously tried to search for this thread, in which we discussed the arguments before the Supreme Court. The search function of the forum did not find this thread. But clicking the "abortion" tag did.

In this thread, I said:

Brown said:

Third, it is evident that Justice Kennedy will likely be the pivot Justice. Whether the statute is upheld or not, he is perhaps the leading contender to author the Court's opinion (assuming that the Court is able to render an "opinion"--in which five or more justices agree on the result and the rationale--rather than a "judgment"--in which five or more justices agree on the result but fewer than five agree on the rationale). In the 2000 case of Stenberg v. Carhart, Justice Kennedy took the position that a Nebraska "partial birth abortion" statute was constitutional. In that case, Justice Kennedy was in the minority. Justice Kennedy is therefore faced with something of a dilemma. If he "switches sides" and finds the statute invalid, he will have to defend himself against his own words in his 2000 dissent (which Justice Scalia would certainly throw back at him). If Justice Kennedy votes to uphold the statute, on the other hand, he will have to find a way to distinguish or overrule the 2000 decision, or otherwise bypass its stare decisis effect.

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I was right that Justice Kennedy was the pivot Justice and that he would author the Court's opinion. But I was not quite right about how Justice Kennedy would handle Stenberg. Basically, he simply ignored it. Oh, he mentioned the case and discussed it a bit, but he didn't really distinguish it with a careful analysis, nor did he explicitly overrule it; and legal scholars are wondering whether Stenberg is still good law.

In this thread, I also wrote:

Brown said:

In the 2000 Stenberg case, Justice Kennedy strongly supported deference to the legislature (in this case, the Nebraska state legislature). "Courts are ill-equipped to evaluate the relative worth of particular surgical procedures," said Justice Kennedy. "The legislatures of the several States have superior factfinding capabilities in this regard." In general, the Supreme Court offers a degree of deference to the factfinding of Congress as well (such factfinding is sometimes charitably called "legislative factfinding").

What the U.S. Congress did in enacting its statute was to perform a whole bunch of legislative factfinding. There were several such legislative facts found, but perhaps the most pointed one is this: The Congress "found" that the procedure in question is "never necessary to preserve the health of a woman." Never.

In the lower courts, there was quite a bit of evidence indicating that some of the facts found by Congress were, shall we say, questionable.

In Stenberg, the factual record had some holes in it, and even Justice Kennedy said as much, citing matters supported or unsupported by expert testimony in the lower courts. But in the pending cases, the factual record is, in the words of the Solicitor General, "more robust." Justice Stevens inquired several times into whether some of the legislatively found facts were really legitimate, in light of the evidence in the record. "General Clement," he asked the Solicitor General, "are not some of the findings by Congress clearly erroneous?"

Justice Breyer observed that there was evidence presented in court that Congress's factfinding was right, but there was also evidence presented that it was wrong. Justice Breyer wondered whether, if medical opinion is divided, whether this is really a matter where Congress or the courts ought to be taking inflexible sides.

This notion of having government substitute its judgment in a matter of legitimate medical debate--as supported by the evidentiary record--might be distasteful to Justice Kennedy. Yet in Stenberg, Justice Kennedy asserted that having government making such a judgment is allowed, and quoted precedent saying that "disagreements among medical professionals 'do not tie the State's hands in setting the bounds of ... laws. In fact, it is precisely where such disagreement exists that legislatures have been afforded the widest latitude.'"

The Supreme Court is not a group of medical doctors. Justice Kennedy would almost certainly be quick to acknowledge that, although he has done considerable research about the procedures in question, he is far from qualified to be an expert on the subject. One has to wonder whether he would rule that the Court should simply pretend that Congress, which likewise is not a group of medical doctors and whose [motivations] were dominated by non-medical considerations, actually is in the best position to make such medical judgments.

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Justice Kennedy backed off a bit from the notion that legislatures are better equipped than courts to make medical determinations when constitutional rights are in issue.

But despite the extensive and "robust" record, Justice Kennedy ruled that the record was insufficient to support a facial challenge to the Act. Uncharacteristically, he gave the record made before the District Court short shrift. As I wrote earlier:

Brown said:

One "way out" for Justice Kennedy is to pursue differences in the evidence in the factual records of the present cases and in the factual record of the 2000 case. The majority in the Stenberg case said: The "record" and "evidentiary circumstances" were crucial in Stenberg, and they will probably be just as crucial in the two cases argued today. Justice Kennedy may have a basis for asserting that the record supports a health exception, and thus distinguish his 2000 dissent. This is the perhaps the best way out, and Justice Kennedy may very well take it.

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This is not the way that Justice Kennedy took. He determined that there need not be a health exception in the statute, and his reasons are rather weak. Because there was a disagreement about whether the procedure in question could be beneficial to the health of the mother, and because there was disagreement about whether banning the procedure would produce health risks, then Congress could step in and settle the issue. Justice Kennedy:

The medical uncertainty over whether the Act’s prohibition creates significant health risks provides a sufficient basis to conclude in this facial attack that the Act does not impose an undue burden [on a woman's right to an abortion].

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Read this sentence and ask yourself whether it makes any sense. Putting the best face on it, Justice Kennedy seems to be saying that unless Congress comes right out and says "What we're doing is putting an undue burden upon women seeking to enforce their abortion rights," then virtually any pretext for an abortion restriction must be accepted by the Court. And the pretext doesn't even have to be a good one. It can just be a showing of some sort of debate about health, a debate which Congress is empowered (but almost certainly not qualified) to settle. Banning a potentially helpful medical procedure is not an undue burden if the ban is justified by settling a debate. (Never mind that those who urge for allowance of the procedure are specialists in the area, and those who urge its banning are not. It's still a debate, dammit! Where have we seen this line of "reasoning" before?)

Brown said:

Read this sentence and ask yourself whether it makes any sense.

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It makes sense. What we are talking about is a statistically insignificant number.

It seems like partial birth abortion bans are the win-win issue since its a non-issue. The GOP bans it and their fund raisers have a "win" to point to. The democrats claim its a major step in unseating Roe V. Wade and have new fuel to fire up the base.

Its almost a farce that the supremes are dragged into.

corplinx said:

It makes sense. What we are talking about is a statistically insignificant number.

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I understand what you're saying, but I wouldn't put it that way. If you're the woman who is having to decide whether to have a safer, prohibited procedure or a less safe, but legal procedure, it is no comfort to be told that you are "statistically insignificant."

There are a number of large-award court cases in which it was shown that safety measures weren't taken because the risk of someone being hurt was "statistically insignificant." Then someone got hurt. Juries don't like it when a company says to an injured plaintiff: "We could have made our product safer, but the chance that someone would be hurt was statistically insignificant."

A better way to put it is to say that the procedure in question is rarely used, and even in those rare instances when it could be used, the patient always has safe alternatives available. Those alternatives may or may not be as safe to the woman's health as the prohibited procedure itself, but the Constitution does not require that they be as safe or safer than the banned procedure.

If this is indeed what was meant, then Justice Kennedy expressed the idea poorly.

If one is going to determine whether something is an "undue burden" on a woman seeking an abortion, then one would ordinarily focus on the woman and ask what she must do to exercise her right, then evaluate whether the obstacles that prevent her or deter her or impede her from exercising that right are "undue." But Justice Kennedy does not focus on the woman. He focuses upon a debate among doctors. Because there is medical uncertainty, he says, there is no undue burden.

Brown said:

I understand what you're saying, but I wouldn't put it that way. If you're the woman who is having to decide whether to have a safer, prohibited procedure or a less safe, but legal procedure, it is no comfort to be told that you are "statistically insignificant."

There are a number of large-award court cases in which it was shown that safety measures weren't taken because the risk of someone being hurt was "statistically insignificant." Then someone got hurt. Juries don't like it when a company says to an injured plaintiff: "We could have made our product safer, but the chance that someone would be hurt was statistically insignificant."

A better way to put it is to say that the procedure in question is rarely used, and even in those rare instances when it could be used, the patient always has safe alternatives available. Those alternatives may or may not be as safe to the woman's health as the prohibited procedure itself, but the Constitution does not require that they be as safe or safer than the banned procedure.

If this is indeed what was meant, then Justice Kennedy expressed the idea poorly.

If one is going to determine whether something is an "undue burden" on a woman seeking an abortion, then one would ordinarily focus on the woman and ask what she must do to exercise her right, then evaluate whether the obstacles that prevent her or deter her or impede her from exercising that right are "undue." But Justice Kennedy does not focus on the woman. He focuses upon a debate among doctors. Because there is medical uncertainty, he says, there is no undue burden.

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I can't speak for Justice Kennedy, but no "right" is without limits. Look at gun laws. Limits to gun ownership are constitutional because even though limits are imposed the broader right to bear arms is still upheld. Its quite possible that Kennedy meant the same in this case and that there isn't an undue burden on a woman trying to obtain an abortion even if the this ban is constitutional.

He need not consider the individual woman in the statistically insignificant sample (even though that may be unpopular/insensitive to say). The question is, is this law constitutional (even if it is dumb, meddling, and worse based on congress playing Quincy).

Katana said:

Marginal? Marginal is apparently how you feel about women such as this one. On behalf of those women, I say f- you.

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Reinforcing your point, Katana, if the life of one baby is so important that they need to ban abortions, what is it about the life of a few mothers that is so unimportant? That's the difference between morals and ethics: morals make you think you know what the right choice is no matter what the circumstances, where ethics tell you there is no choice that is right no matter what the circumstances.

Morals are for idiots and children. Adults use ethics.

Thanks for the posts, Brown. Always interesting.

If one is going to determine whether something is an "undue burden" on a woman seeking an abortion, then one would ordinarily focus on the woman and ask what she must do to exercise her right, then evaluate whether the obstacles that prevent her or deter her or impede her from exercising that right are "undue." But Justice Kennedy does not focus on the woman. He focuses upon a debate among doctors. Because there is medical uncertainty, he says, there is no undue burden.

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I think Kennedy's argument is a bit more subtle than that. He notes, first, that Congress held hearings on the Partial Birth Abortion Ban Act and concluded that standard D&E is just as safe as intact D&E. Justice Kennedy then points out that, as the legislative branch of government charged with making federal policy, Congress's findings of fact are entitled to some degree of deference by the Court, though the Court need not defer to Congressional findings that are clearly erroneous[1] (e.g., the finding that no American medical schools teach the intact D&E procedure). He then says, however, that because substantial medical uncertainty (i.e., conflicting expert testimony)exists on the question of whether standard D&E is just as safe as intact D&E, Congress's finding that it is just as safe is not clearly erroneous, and the Court therefore should defer to it. Doing so, Justice Kennedy concludes that the Act does not create a "substantial obstacle" to the exercise of the right to abortion, not because medical uncertainty exists as to the relative safety of intact D&E vis-a-vis standard D&E, but rather because, deferring to Congress's findings, the Court is compelled to assume that standard D&E is just as safe as intact D&E, and therefore the Act does not place any greater burden on a pregnant woman seeking an abortion at all-- it simply prohibits the use of one of two procedures that are identical in terms of safety.

That line of argument may be subject to criticism-- most particularly, I think, on the premise that Congress's finding is not clearly erroneous and therefore entitled to judicial deference-- but I don't think it's quite as simplistic an argument as you portray it.

[1] "Clearly erroneous" is a legal term of art that refers to a specific level of review applied by appellate courts to the findings of trial courts and administrative agencies in some circumstances. I don't recall that the Carhart opinion specifically uses this term, but it is my impression that this is essentially the standard of review that Kennedy is applying. Even if he is applying some less deferential level of review, the opinion clearly concludes that Congress's finding of fact is sufficiently reasonable to be entitled to deference from the court.