Figure this one out: In July 2000 SCOTUS nominee Samuel Alito, sitting on the U.S. Court of Appeals for the Third Circuit, voted that a law banning “partial birth” abortion was unconstitutional.
This doesn’t mean I trust him not to mess with Roe v. Wade, but please pass this along to the righties. Let it mess with their heads.
The case was Planned Parenthood of Central New Jersey v. Farmer. I just found this and I need to read it through to understand exactly what the problems were with this law, but here is Alito’s concurrence with the decision (note the phrase, “our responsibility as a lower court):
ALITO, Circuit Judge, concurring in the judgment.
I do not join Judge Barry’s opinion, which was never necessary and is now obsolete. That opinion fails to discuss the one authority that dictates the result in this appeal, namely, the Supreme Court’s decision in Stenberg v. Carhart, 2000 WL 825889 (U.S. June 28, 2000). Our responsibility as a lower court is to follow and apply controlling Supreme Court precedent. I write briefly to explain why Carhart requires us to affirm the decision of the District Court in this case. This is an appeal by the New Jersey State Legislature from a decision of the United States District Court for the District of New Jersey holding the New Jersey Partial-Birth Abortion Ban Act of 1997, 2A:65A-5 et seq., unconstitutional and permanently enjoining enforcement of the Act. Planned Parenthood of Central New Jersey v. Verniero, 41 F. Supp. 2nd 478 (D.N.J. 1998). The New Jersey statute closely resembles statutes enacted in recent years in many other states.
On January 14, 2000, the Supreme Court granted certiorari to review the decision in Carhart v. Stenberg, 192 F.3d 1142 (8th Cir. 1999), cert. granted, 120 S.Ct. 865 (2000), which presented the question of the constitutionality of a similar Nebraska statute. The Supreme Court recently held that the Nebraska statute is unconstitutional. Stenberg v. Carhart, 2000 WL 825889 (U.S. June 28, 2000).
The Court based its decision on two grounds. First, in Part II-A of its opinion, the Court held that the Nebraska law is unconstitutional because it lacks an exception for the preservation of the health of the mother. See 2000 WL 825889, *9-*14. Second, in Part II-B of its opinion, the Court held that the Nebraska statute is unconstitutional because it imposes an undue burden on a woman’s ability to choose the method most commonly used for second trimester abortions, the “dilation and evacuation” (D & E) method. See 2000 WL 825889, *14-*18.
Under Carhart, the decision of the District Court must be affirmed. First, the New Jersey statute, like its Nebraska counterpart, lacks an exception for the preservation of the health of the mother. Without such an exception, the New Jersey state is irreconcilable with Part II-A of Carhart.
Second, the Supreme Court’s holding in Part II-B of Carhart is also applicable here. As noted, in that portion of its opinion, the Court held that the Nebraska statute applied, not only to the “dilation and extraction” or D & X procedure, but also to the more commonly used D & E procedure. The wording of the relevant provisions of the Nebraska statute is nearly identical to that of the New Jersey statute. Thus, the Supreme Court’s holding in Part II-B of its opinion in Carhart must be regarded as controlling in this case.
In light of this interpretation of the New Jersey statute, the Legislature’s argument that the plaintiffs lack standing must fail. As noted above, the New Jersey statute must be interpreted, in light of Carhart, as applying to the D & E procedure, and the plaintiff physicians in this case perform that form of abortion. The Legislature’s argument that this case is not ripe because the New Jersey statute has not been authoritatively interpreted by the state courts or state enforcement officials must also fail. In view of the interpretation in Carhart, there is no reason to wait for interpretation by state officials or judges.
In a post-Carhart filing, the New Jersey Legislature has urged us to certify questions concerning the interpretation of the New Jersey statute to the state supreme court. In Carhart, however, the Supreme Court of the United States turned down a similar request for certification by the Attorney General of Nebraska. 2000 WL 825889, *18. The decision of the Supreme Court of the United States to deny certification in Carhart must be regarded as controlling here, both with respect to the Legislature’s request for certification and with respect to its closely related argument that the District Court erred in refusing to abstain pursuant to Railroad Commission v. Pullman Co. , 312 U.S. 496 (1941).
In conclusion, Carhart compels affirmance of the decision of the Distric Court.
I will comment further once I’ve had a chance to digest this.
“Our responsibility as a lower court is to follow and apply controlling Supreme Court precedent.”
Stare decisis. Once he’s on the SC he can reverse that precedent. Good move by a second tier appellate judge who doesn’t want to get overruled.
I think this is fascinating, but I think Steve’s right about why Alito more or less had to vote that the law was unconstitutional. But I think we should still pass it along to the right.
The case also goes to the fundamental dishonesty that has been perpetrated successfully on most American voters, to wit, that Democrats and other pro-choice type persons refuse to accept the very notion of a law forbidding partial-birth abortion; what we oppose is any law which fails to include an exception for the health of the mother, in addition to the life of the mother, or instead of the life of the mother. That’s why all the state partial-birth abortion bans have failed to receive Supreme Court approval; Roe v Wade’s underpinnings go to the health of mothers and their right to protect it. The rightwing whine is always that “health” is too vague a concept, but how specific is “the life” of the mother? What would the approved percentages be that a specific mother might die without this procedure, that would exempt her from the law, and who would decide how much in danger your life has to be. That’s not the way these things work themselves out during an actual pregnancy.
I know someone who ended up having a partial-birth abortion; it was an unwanted abortion of a much wanted baby. When it was discovered that the baby’s brain was outside the skull and there was certainty that it would scarecely live an hour after birth, my dear friends decided to go ahead with the birth; this was their child, they couldn’t bare the thought of their child dying alone, during an abortion. Then the mother developed gestational diabetes, and her blood pressure went crazily high. None of the doctors could give her any kind of precise percentage of what kind of odds she faced in being able to go full term and five birth without having a stroke. One thought the stroke possibility was around 20 percent, others though it higher; they got third and fourth opinions. This was already a family with three children; the parents decided they owed their children better odds on making sure that they continued to have a mother. I viewed much of this agony and I am here to tell you that in many ways I still can’t imagine the pain my friends went through. Try and imagine the horror of having to justify themselves to a pro-life nurse with the power to report them under a Partial birth abortion ban that only mentioned the life of the mother; imagine having to go to court to get permission not to place yourself in a 20 percent danger of having a stroke.
I simply don’t believe that a majority of Americans want to live in that kind of country.
Which sites do you consider ‘right-wing’? This is one is on a couple of others I’d consider more right than left, but no one seems too perturbed by it.
Leah:
Everybody (incl. those registered as Rs) I talked to about the partial birth abortion ban thought that the health of the mother was an exemption built into the law. Also, I thought that there were other abortion procedures that were easier on the woman than this one. Was I misinformed, or was the ‘health rider’ only in the one presented to the US congress and not these state laws, or what?
Okay, never mind my question. Here’s the money quote
The Court based its decision on two grounds. First, in Part II-A of its opinion, the Court held that the Nebraska law is unconstitutional because it lacks an exception for the preservation of the health of the mother. See 2000 WL 825889, *9-*14. Second, in Part II-B of its opinion, the Court held that the Nebraska statute is unconstitutional because it imposes an undue burden on a woman’s ability to choose the method most commonly used for second trimester abortions, the “dilation and evacuation†(D & E) method. See 2000 WL 825889, *14-*18.
According to the American College of Obstetricians and Gynecologists, under some circumstances D&E and D&X are the safest procedures for second trimester abortions. A larger issue in the “partial birth” laws, however, is the fact that they are written using vague and non-medical terminology. Physicians say they can’t tell from the way the laws are written exactly what is being banned. Discussed further here:
https://www.mahablog.com/2005/10/31/better-middle-than-late/