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FUMARE

Law, culture, and Catholicism...up in smoke!

Wednesday, April 18, 2007

Abortion Case Victory

The partial birth abortion ban has been upheld by the United States Supreme Court, 5-4, with Justice Kennedy writing the majority opinion in Gonzales v. Carhart (Case No. 05-380) and Gonzales v. Planned Parenthood (Case No. 05-1382). The opinions can be accessed here.

From Scotusblog:

Dividing 5-4, the Supreme Court on Wednesday gave a sweeping -- and only barely qualified -- victory to the federal government and to other opponents of abortion, upholding the 2003 law that banned what are often called "partial-birth abortions." Justice Anthony M. Kennedy wrote for the majority in the first-ever decision by the Court to uphold a total ban on a specific abortion procedure.

The Court said that it was upholding the law as written -- that is, its facial language. It said that the lawsuits challenging the law should not have been allowed in court "in the first instance." The proper way to make a challenge, if an abortion ban is claimed to harm a woman's right to abortion, is through as as-applied claim, Kennedy wrote. His opinion said that courts could consider such claims "in discrete and well-defined instances" where "a condition has or is likely to occur in which the procedure prohibited by the Act must be used."

Kennedy said the Court was assuming that the federal ban would be unconstitutional "if it subjected women to significant health risks." He added, however, that "safe medical options are available."


Kennedy, Roberts, Alito, Scalia, Thomas in the majority. Ginsburg writing the dissent, with Breyer, Souter, Stevens joining.

Nice work, Justice Kennedy, you might have restored my faith in you.

UPDATE: After my initial optimism from the decision, Justice Kennedy has retaken his position as my Number 1 Least Favorite Justice. I can never forgive him for the Casey/Lawrence passage which is a travesty against all rational human thought and logic: "At the heart of liberty is the right to define one’s own concept of existence, of meaning, of the universe, and of the mystery of human life."

But Justice Ginsburg is a very close second as my Number 1 Least Favorite Justice, especially after reading her dissent. Some badges of dishonor from her dissent:
[Legal challenges to abortion] center on a woman's autonomy to determine her life's course, and thus to enjoy equal citizenship stature.

Though today's majority may regard women's feelings on the matter as self-evident, ante, at 29, this Court has repeatedly confirmed that "[t]he destiny of the woman must be shaped . . . on her own conception of her spiritual imperatives and her place in society." Casey, 505 U. S., at852.

Throughout, the opinion refers to obstetrician-gynecologists and surgeons who perform abortions not by the titles of their medical specialties, but by the pejorative label "abortion doctor". [Note: Did I miss the memo on "abortion doctor" now being a pejorative label?]

[Abortion is] a right declared again and again by this Court and with increasing comprehension of its centrality to women's lives.
The rest of Justice Ginsburg's dissent is a cold-hearted and callous defense of the right to kill one's unborn child. She jumps on the majority opinion as completely irrational, by pointing out that prohibiting partial-birth abortions won't stop the total number of abortions done, and that partial-birth abortion is just as gruesome as dismemberment; and thus, there is no principled reason for prohibiting partial-birth abortion. Horrific.

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