Wednesday, April 18, 2007

So Much For Justice Roberts' Respect for Precedent

At his confirmation hearings, now-Chief Justice Roberts earnestly and unblinkingly insisted that his respect for the venerable principle of stare decisis would not permit him to discard well-settled precedent. And butter wouldn't melt in his mouth . . . .

Today the Supreme Court, by a 5-4 vote, employed a tactic honed to a fine edge by Roberts's predecessor -- overrule well-settled precedent and deny, with faces straight and sober, that anything was overruled. In today's opinion, they upheld the federal ban on the dilation and extraction abortion method. I don't have time for an exegesis, but Ginsberg's spot-on dissent makes the point:
Today’s decision is alarming. It refuses to take Casey and Stenberg seriously. It tolerates, indeed applauds, federal intervention to ban nationwide a procedure found necessary and proper in certain cases by the American College of Obstetricians and Gynecologists (ACOG).

It blurs the line, firmly drawn in Casey, between previability and postviability abortions. And, for the first time since Roe, the Court blesses a prohibition with no exception safeguarding a woman’s health.

I dissent from the Court’s disposition.

Retreating from prior rulings that abortion restrictions cannot be imposed absent an exception safeguarding a woman’s health, the Court upholds an Act that surely would not survive under the close scrutiny that previously attended state-decreed limitations on a woman’s reproductive choices.

Further reading:

Reuters: US top court upholds law banning some abortions
The Caucus: 2008 Candidates on the Abortion Ruling
PR Inside: ACLU and National Abortion Federation Criticize Decision
Brisbane Times: US Supreme Court decision may lead to abortion restrictions
VOA: US Supreme Court Upholds Ban on Disputed Abortion Procedure
Newslocale: Implications Of The Federal Ban On Partial-Birth Abortions
The Australian: Bush hails US court abortion decision
Christian Science Monitor: US Supreme Court allows late-term abortion ban
PRNewswire: Roberts Court Shows Its Cards: In a Stunning Reversal, Supreme Court Rules Against Women's Health, in Favor of Abortion Restrictions
NYTimes: Supreme Court Upholds Ban on Abortion Procedure
The Nation: The Politics of Supreme Court Nominations
BBC: US top court backs abortion ban
Bloomberg: Partial Birth' Abortion Ban Upheld by Top U.S. Court
AP: GOP candidates praise abortion ruling
Townhall: A Closer Look at Partial Birth Abortions
CNN: Justices uphold ban on abortion procedure
Think Progress: Breaking: Supreme Court Upholds ‘Partial Birth’ Abortion Ban
WaPo: High Court Upholds Curb on Abortion

Stix: Finally
Suburban Guerilla: Playing (Too) Nice
Slog: Justice Ginsburg’s Dissent
Linkmeister: SCOTUS, Alito and abortion
Punditbuzz: Partial Birth Abortion Ban Upheld
Mainly Politics: Right to abortion no longer guaranteed
Oliver Willis: The Left Needs To Wise Up On The Supreme Court
Martin Lewis: Abortion Ban & Virginia Massacre: Don't Forget To Thank The Nader Voters
Const. Party: Supreme Court does something right about Abortion
Galloping Beaver: Rhetoric trumps Law in US Supreme Court
Descent into Madness: Danger: Supreme Court Upholds Federal Abortion Ban

Dahlia Lithwick: Justice Kennedy Knows Best?
Edward Whelan: A Welcome Decision on Abortion
Los Angeles Times: An Unconscionable Abortion Ruling
SCOTUSblog: Court Upholds Federal Abortion Ban
Christine Todd Whitman: Carbon Ruling: A Welcome First Step
J. Fund, OpinionJournal: O'Connor & the Twilight of Affirmative Action
Boston Herald: The Supremes Off the Beam

2 comments:

Evrviglnt said...

Concerning the ban on partial birth - there is an exception when the life of the mother is in danger, which is why it got the number of democratic votes that it did (sixteen in the senate, including minority leader Tom Daschle).

I understand the liberal angst over the lack of a provision for the health of the mother, that tactic has been used to great effect thus far. I expect that since this gruesome procedure is used so rarely, this case will actually result in little change in the number of times D and E is performed.

A Big Fat Slob said...

Yes, there is an exception for the life of the mother. But not for the health. That the procedure is so rarely used is preceisely what compels the requirement of an exception for the mother's health. This technique is only medically justified (and only in fact ever used)in the rarest of cases when it is the safest for the mother. That is why it is used in only about 1/10th of 1% of the abortions performed. To permit it to be banned in cases where it is the only medically-available safe procedure, is precisely what the Casey decision said that one could not do.

It is more than a little patronizing, and belies a tremendous lack of understanding, to reduce the matter to a question of "liberal angst". Because THIS procedure is so rarely used, the practical impact of this procedure on the population as a whole wil lbe slight. But on the woman to whom it applies, the effect will be tremendous.

More important, it is the extension of the reasoning (so-called)and principles of this decision which will have far-reaching impact in the areas of personal liberty and privacy.

As, or even more significant, is the impact of the Court's wily-nilly overthrow of decades of precedent on other, unrelated, issues which we all thought were similarly well-settled. The Court signals a perverse acceptance of inconsitancy which is dangerous when we are dealing with Constitutional principle.