No. 05-380, April 18, 2007
This is the opinion of the supreme court of the USA, regarding a federal 'partial birth' abortion ban that was legislated and then challenged 'facially' (before anyone was even arrested for violating the statute). The findings of the court was a 5-4 decision that the act was not facially unconstitutional.
Much has been said and already discussed on this opinion, so I shall stick to the outline.
Author first lays out the history of the case and previous rulings related to it, mentioning Stenberg v. Carhart in particular. Author also gives the history of the act and background information on the method of second trimester abortions that are commonly performed, one is D&E (dilation and evacuation) and D&X (dilation and extraction). Of the two, D&X mostly involves delivering most of the fetus, then piercing its skull and shrinking its head to get it out of the birth canal. Though D&X is far less utilized than other practices, it is used by many doctors who consider it a safer (health-wise for the woman) to use it. The act seeks to ban variations of D&X, and gives no health exemptions for the woman. Congress performed a finding of fact, which was mostly mixed and somewhat erroneous, but concluded that there is no medial necessity to perform D&X.
Author first claims that the act is not vague and lists the specific conditions that are punishable and the alternatives that are not. (III A, B) Author then considers whether vague language in the act creates an undue burden on a woman seeking an abortion, since it could cover D&E; he rejects this (III C1). Author also rejects that some abortions that begin as D&E end by accident as D&X and that this would chill other abortion procedures, making an undue burden; author rejects this by affirming that the act calls for it to be an intentional D&X, not an unintentional one.
Author further affirms two claims: 1) that the state has a legitimate interest in preserving the integrity and ethics of physicians, and 2) that partial birth abortions are 'lade with the power to devalue human life'. The decision to have a D&X is so fraught with emotional consequences that some doctors do not disclose the details of the procedure: but how the procedure takes place is precisely the issue abhorrent to the state. Author thinks it might be possible that abortion doctors will develop new, less shocking methods, of aborting late-term fetuses. The state has an interest in preserving a bright line between good medicine and bad: it is tough to tell the difference between a D&X and infanticide.
The next issue is the lack of an exception for the preservation of the health of the mother. (IV B) Author claims there is medical testimony on both sides of the question of whether a D&X is ever medically necessary. According to the testimony of some doctors, a D&E is always just as safe. Author claims that because there is medical uncertainty, there is no reason to presume on the side of caution in a facial challenge. The state is permitted to pass a wide range of legislation where there is medical or scientific uncertainty. Author leaves open that an 'as-applied' challenge can be used here instead of a facial challenge.
Scalia & Thomas concur, also claiming that there is no basis in the US Constitution for Roe v Wade.
Ginsburg delivers the dissent
Author first points out that the claim of medical uncertainty is fallacious since, mostly, Congress ignored the testimony of good abortion doctors and listened to many non-abortion doctors who all claimed that D&X was not medically necessary. There is a strong body of evidence that for a small portion of women, D&X is less dangerous to the health of the mother than any other option.
Author claims Kennedy et al have not drawn the line for abortions at viability/non-viability but instead at a idea of resemblance to infanticide/abortions.The only saving factor here, author claims, is that as-applied challenges are still possible.
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