Wednesday, March 5, 2008

Caitlin Borgmann on Judicial Deference to Legislative Factfinding

Caitlin Borgmann (CUNY Law School) has posted Rethinking Judicial Deference to Legislative Factfinding on SSRN.  Here is the abstract:

It is traditionally assumed that the role of ascertaining and evaluating the social facts underlying a statute belongs to the legislatures. The courts, in turn, are tasked with deciding the law and must defer to legislative factfinding on relevant issues of social fact. This simplistic formula, however, does not accurately describe the courts' confused approach to legislative factfinding. Although the courts often speak in terms of deference, they follow no consistent or predictable pattern in deciding whether to defer in a given case. Moreover, blanket judicial deference to legislative factfinding would not be a wise general rule. Because social factfinding plays a decisive role in constitutional analysis, blind judicial deference would undermine the courts' responsibility to protect individual rights. Judicial treatment of legislative factfinding is thus sorely in need of a coherent theory.

This Article proposes a new approach, a paradigm of selective independent judicial review of social facts. Under this model, the courts should independently review the factual foundation of all legislation that curtails individual rights, even when those rights do not receive strict or heightened scrutiny. This approach is unique in ensuring a baseline protection for all individual rights, including emerging rights, while respecting the division of power between the branches of government. The paradigm is needed because, this Article asserts, legislatures are poorly positioned to gather and assess facts dispassionately, especially when addressing laws that restrict controversial or minority rights. The process of factfinding in federal trial courts ensures a superior factual record when such rights are at stake. This Article illustrates the courts' and legislatures' contrasting capacities for factfinding through case studies, including "partial-birth abortion," gay parenting, and indecency on the Internet. Moreover, the Article argues, because of the courts' vital role in protecting individual rights, the proposed paradigm honors constitutional structural principles.

Comments are welcome.  The article includes a case study constrasting legislative and judicial factfinding on the federal and state "partial-birth abortion" bans.

March 5, 2008 in Gonzales v. Carhart, Scholarship and Research | Permalink | Comments (0) | TrackBack (0)

Friday, February 29, 2008

S.C. Law Review Symposium on Equality and the Roberts Court

I am looking forward to participating today in the South Carolina Law Review Symposium, The Roberts Court and Equal Protection: Gender, Race, and Class.  I will be speaking on the panel on gender along with Deborah Brake (Pittburgh), David Cohen (Drexel), and Teresa Collett (St. Thomas).  The full list of panels and speakers is available here.

February 29, 2008 in Gonzales v. Carhart, Law School, Scholarship and Research, Supreme Court | Permalink | Comments (0) | TrackBack (0)

Monday, January 7, 2008

More blog posts on AALS Hot Topic Panel on Gonzales v. Carhart

David Cohen has posted commentary on the panel at Feminist Law Professors, focusing on which women are most affected by abortion bans on post-first-trimester procedures. 

Michael Dorf (one of the speakers) also comments, at Dorf on Law, on a disagreement between him and Jack Balkin on whether the Republican party has actively sought the reversal of Roe or has instead self-consciously pursued a strategy of incremental restrictions.

January 7, 2008 in Conferences and Symposia, Gonzales v. Carhart, Supreme Court | Permalink | Comments (0) | TrackBack (0)

AALS "Hot Topic" Panel on "Reproductive Justice After Carhart"

I thought I would say a bit about this informative and insightful panel, a "hot topic" panel at this year's AALS meeting in New York, for those who were unable to attend.  While it is of course not possible to summarize the entire session (and unfortunately I don't believe the AALS is offering podcasts of this year's sessions), I hope this will give a flavor of what the audience heard. 

The topic was Gonzales v. Carhart (Carhart II), the Supreme Court's 2007 decision upholding the federal ban on so-called "partial-birth abortion," and the decision's implications for the future of reproductive justice.  (For all this blog's posts on Carhart II, including my own and links to others' analyses of the opinion, click here.)  The session was conducted in a roundtable format with Pamela Karlan (Stanford) posing questions to the five panelists, Jack Balkin (Yale), Michael Dorf (Columbia), Angela Harris (Boalt), Reva Siegel (Yale), and Kenji Yoshino (Yale).

Professor Karlan explained that the panel was not intended to present the full spectrum of views on the opinion, since all of the panelists are pro-choice, but rather was meant to allow the audience to hear, and participate in, a conversation in which the speakers have been engaged since the decision was issued last year.  The panelists first discussed what was particularly noteworthy about the opinion.  They explored the opinion's rhetoric, including its references to the fetus as an "unborn child" and to the pregnant woman as "mother."  The speakers considered the implications of the Court's anachronistic, romantic idealization of pregnancy and motherhood.  Audience members were particularly interested in the panelists' discussion of the role of regret in Kennedy's opinion, which asserted (confessedly against the weight of the evidence) that pregnant women will necessarily regret their abortions.  Professor Siegel pointed out that this aspect of Kennedy's opinion reflects a new trend in anti-choice advocacy to portray abortion as psychologically harmful to women, rather than focusing on the fetus.  She noted the importance of South Dakota, where this shift has been the source of great public debate and has resulted in legislative experiments testing the new approach. 

Professor Balkin discussed another aspect of the Court's paternalistic approach, namely its confidence in posing as a medical expert in terms of what information pregnant women should know.  He pointed out that this has worrisome implications for legal challenges to the new generation of so-called "informed consent laws," including Planned Parenthood v. Rounds, now pending in the 8th Circuit.  It could encourage legislatures to pass laws requiring women to view ultrasounds of their fetuses and to receive a wide range of emotionally charged, misleading information unrelated to the medical aspects of abortion.

The speakers also addressed inconsistencies between aspects of this opinion and other decisions authored by Kennedy.  Professor Dorf noted, for example, that Kennedy is not known for giving deference to Congress, and while he formally purported not to defer to Congress, he nevertheless did so informally.  Professor Harris noted that, in Lawrence v. Texas, Kennedy declared that mere abhorrence was insufficient to justify criminal prohibition, and yet Carhart II seems based on nothing more than abhorrence. 

The panel also considered the constitutional principles invoked in the decision.  Professor Yoshino remarked on the related nature of liberty and equality, noting that while the principle of equality often operates to expand liberty, it can also be employed to contract it.  That is what happened in Carhart II, where the principle of equality (viewed as protection of a targeted group) was turned against women. The opinion was cast as protective of women, but in fact stifles their liberty.

January 7, 2008 in Abortion Bans, Anti-Choice Movement, Conferences and Symposia, Gonzales v. Carhart, Supreme Court | Permalink | Comments (0) | TrackBack (0)

Friday, January 4, 2008

Reminder: AALS Hot Topics Panel on Reproductive Justice After Gonzales v. Carhart

The AALS Hot Topics Panel “Reproductive Justice After Carhart,” is tomorrow, Friday, Jan. 4, from 10:30am-12:15pm:

Moderators:Pamela S. Karlan, Stanford Law School
  Jack M. Balkin, Yale Law School
  Panelists :     Michael C. Dorf, Columbia University School of Law
    Reva B. Siegel, Yale Law School
    Kenji Yoshino, Yale Law School
    Angela P. Harris, University of California, Berkeley School of Law
      

        This roundtable will discuss Gonzales v. Carhart, the Supreme Court’s 2007 decision upholding the federal Partial Birth Abortion Ban Act.  Panelists will focus on the ways that Carhart has emerged from and is reshaping debate over questions of reproductive justice in popular movements, the academy, state legislatures, and the courts.
         
        Carhart suggests a new understanding of the state' s interest in regulating abortion, as well as a new understanding of the abortion right itself.  Discussion will explore how the abortion right might be grounded in principles of sexual freedom and gender equality. Drawing on examples of abortion regulation now in state legislatures, the roundtable will examine the constituent elements of the government's interest in regulating abortion, including the government's asserted interest in protecting women from psychological harms associated with the abortion decision and  the equities of imposing more extensive and value-laden informed consent requirements, as many states are now contemplating. The group will also discuss changes in the structure of abortion-related litigation, such as the distinction between as-applied and facial attacks on abortion regulations, especially as this bears on the requirement of a health exception.

Also of interest:

Friday 4-5:45 pm:

Law and the Interpretation of Sex and Gender

Moderator: Marc R. Poirier, Seton Hall University School of Law
Speakers: Carlos A. Ball, The Pennsylvania State University Dickinson School of Law
Mary Anne C. Case, The University of Chicago The Law School
Frank Rudy Cooper, Suffolk University Law School
Dean P. Spade, Law Teaching Fellow, Los Angeles, California

This panel assembles established and emerging scholars whose work has examined law and the interpretation of sex and gender from feminist, Foucauldian and left critical perspectives. They will present their current work. Topics likely to be addressed include the legal control of sexuality after Lawrence v. Texas, the incipient reinscription of sex roles in law, masculinity norms and police treatment of suspects, and the disintegration of legal gender.

Friday  4:00 - 5:45 p.m.

The 140th Anniversary of the Ratification of the Fourteenth Amendment: What is the Future of Rights Litigation?

Moderator: Bernadette Bollas Genetin, University of Akron C. Blake McDowell Law Center
Speakers: Samuel R. Bagenstos, Washington University School of Law
Wilson Ray Huhn, University of Akron C. Blake McDowell Law Center
Sylvia A. Law, New York University School of Law
Robert C. Post, Yale Law School

July 2008 will mark the 140th anniversary of the ratification of the Fourteenth Amendment to the United States Constitution. The panel uses this anniversary as a platform for discussion of the future of rights litigation. The panel will explore a range of issues, including (1) the future development of the 14th Amendment, in light of the interdependence of constitutional law and political mobilization; (2) the likely effects of globalization, empiricism, technological advance, and demographic change on constitutional analysis and rights in the 21st Century; (3) the unlikely prospects for an expanded role for the Fourteenth Amendment in the 21st Century in addressing the economic insecurity and inequality that the U.S. is experiencing in numbers greater than at any time since the Great Depression; and (4) the tensions that will emerge in civil rights litigation as a result of the Rehnquist Court’s strategy of imposing significant restrictions on civil rights litigation through limitation of civil rights remedies, while leaving largely intact the substantive rights that had been expanded by the Warren and Burger Courts.

Saturday 1:30 - 3:15 p.m.

The Margins of Legal Personhood

(Program to be published in Rutgers Law Journal)

Moderator: Kimberly Kessler Ferzan, Rutgers, The State University of N.J. School of Law, Camden
Speakers: Taimie L. Bryant, University of California at Los Angeles School of Law
Margaret O. Little, Associate Professor, Philosophy Department, Georgetown University, Washington, D.C.
Paul Litton, University of Missouri-Columbia School of Law
Lawrence B. Solum, University of Illinois College of Law

This panel explores those “entities” that lie at the boundaries of legal personhood. Specifically, how should the law treat animals, artificial intelligence, fetuses, and psychopaths? And do our views about how to treat one entity commit us to similar treatment of another? For instance, do our views about the treatment of animals inform our understanding of abortion? If we would not hold artificial intelligence criminally responsible, does the same reasoning hold for psychopaths? During this panel, each speaker will discuss one of these “entities” and then the panelists will engage in a discussion of the connections between their theories.

January 4, 2008 in Conferences and Symposia, Gonzales v. Carhart | Permalink | Comments (1) | TrackBack (0)

Monday, December 17, 2007

AALS HOT TOPIC panel on "Reproductive Justice after Carhart"

There will be a Hot Topic panel on "Reproductive Justice after Carhart" at the AALS Annual Meeting in New York.  Here is the information:

Friday, January 4, 2008
10:30 a.m.-12:15 p.m.
Petit Trianon, 3 rd floor, New York Hilton
Moderators: Pamela S. Karlan, Stanford Law School
Jack M. Balkin, Yale Law School
Panelists: Michael C. Dorf, Columbia University School of Law
Reva B. Siegel, Yale Law School
Kenji Yoshino, Yale Law School
Angela P. Harris, University of California, Berkeley School of Law
This roundtable will discuss Gonzales v. Carhart, the Supreme Court's 2007 decision upholding the federal Partial Birth Abortion Ban Act.  Panelists will focus on the ways that Carhart has emerged from and is reshaping debate over questions of reproductive justice in popular movements, the academy, state legislatures, and the courts.

Carhart suggests a new understanding of the state' s interest in regulating abortion, as well as a new understanding of the abortion right itself.  Discussion will explore how the abortion right might be grounded in principles of sexual freedom and gender equality. Drawing on examples of abortion regulation now in state legislatures, the roundtable will examine the constituent elements of the government's interest in regulating abortion, including the government's asserted interest in protecting women from psychological harms associated with the abortion decision and  the equities of imposing more extensive and value-laden informed consent requirements, as many states are now contemplating. The group will also discuss changes in the structure of abortion-related litigation, such as the distinction between as-applied and facial attacks on abortion regulations, especially as this bears on the requirement of a health exception.

December 17, 2007 in Abortion, Conferences and Symposia, Gonzales v. Carhart | Permalink | Comments (0) | TrackBack (0)

Tuesday, November 27, 2007

Chris Guthrie on Gonzales v. Carhart and the Psychology of Regret

170photo Chris Guthrie (Vanderbilt University Law School) has posted Carhart, Constitutional Rights, and the Psychology of Regret on SSRN. Here is the abstract:

In Gonzales v. Carhart, the Supreme Court upheld the Partial Birth Abortion Ban Act of 2003. In so doing, the Court used the prospect of regret to justify limiting choice. Relying on empirical evidence documenting the four ways in which regret actually operates, this Essay critiques the Court's analysis on the ground that it reflects a fundamental misunderstanding of the psychology of regret. By exposing the Court's misunderstanding of this emotion, this Essay seeks to minimize the most significant risk created by the Carhart decision: that states will use the prospect of regret to justify additional constraints on the abortion right as well as other rights protected by the Constitution.

November 27, 2007 in Abortion, Gonzales v. Carhart, Scholarship and Research | Permalink | Comments (0) | TrackBack (0)

Friday, November 2, 2007

Judges Appear Hesitant on VA Abortion Ban

Via the Washington Post :

Virginia's attempt to revive its law restricting abortion received a skeptical reception from a panel of federal judges here Thursday in a key test of how the Supreme Court's decision to uphold federal abortion limits will affect restrictions imposed by the states.

The Supreme Court this spring upheld the federal Partial-Birth Abortion Ban Act, for the first time agreeing that a specific abortion procedure could be banned, and emphasizing government's "legitimate and substantial interest" in preserving fetal life.

But as quickly as Virginia Solicitor General William E. Thro told the three appellate judges hearing the case that the court's decision in Gonzalez v. Carhart "removes any doubt that the Virginia act is constitutional," he was stopped short.

"That doesn't really quite get you home, Mr. Thro," Judge M. Blane Michael said.

Michael and another judge on the three-member panel of the U.S. Court of Appeals for the 4th Circuit seemed more receptive to abortion rights attorneys' arguments that the Supreme Court's decision was a narrow one and did not authorize more far-reaching state restrictions, such as those the Virginia Partial Birth Infanticide Act of 2003 is alleged to employ.

November 2, 2007 in Abortion Bans, Gonzales v. Carhart, In the Courts | Permalink | Comments (0) | TrackBack (0)

Wednesday, October 24, 2007

George Washington Law Review Symposium: Conflicting Interests in Reproductive Autonomy

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Friday, November 2, 2007

George Washington University Law School
Jacob Burns Moot Court Room, Lerner Hall
2000 H Street, N.W. | Washington, DC

The registration deadline is Monday, October 29. Registered guests will be invited to join us for breakfast, lunch, and an evening reception.

The 2007 George Washington Law Review Symposium focuses on the legal and moral issues arising out of the regulation of new reproductive technologies. The proliferation of technologies such as in vitro fertilization, stem cell research, and genetic enhancement tests the boundaries between the societal benefits of and autonomy interests in accessing these technologies and the state’s right to regulate, even prohibit, them. These boundaries are unclear, especially in light of the Supreme Court’s increasing deference to the state’s interest in protecting potential life as clarified in the recent decision of Gonzales v. Carhart.The four panels of the Symposium will bring together leading legal scholars in reproductive rights and constitutional law, sociological researchers, and representatives of the medical community, think tanks, and the President’s Council on Bioethics to discuss these issues.

Panels:

The Personal Right: Privacy, Property, or Child?

The State's Interest: The Implications of Gonzales v. Carhart and Other Recent Cases

Issues of Access to Assisted Reproductive Technologies

Dialogue: A Method for Reconciling Conflicting Views in Reproductive Technology

See full agenda and register online at: www.law.gwu.edu/LawReview

October 24, 2007 in Abortion, Assisted Reproduction, Gonzales v. Carhart, Law School, Scholarship and Research | Permalink | Comments (0) | TrackBack (0)

Tuesday, October 16, 2007

Anita Allen on Gonzales v. Carhart

Aallen

Anita L. Allen (Penn Law) has posted Atmospherics: A Llewellynesque Comment On Abortion Law on SSRN. Here is the abstract:

In 1934, Karl N. Llewellyn published a lively essay trumpeting the dawn of legal realism, On Philosophy in American Law. The charm of his defective little piece is its style and audacity. A philosopher might be seduced into reading Llewellyn's essay by its title; but one soon learns that by "philosophy" Llewellyn only meant "atmosphere." His concerns were the "general approaches" taken by practitioners, who may not even be aware of having general approaches. Llewellyn paired an anemic concept of philosophy with a pumped-up conception of law. Llewellyn's "law" included anything that reflects the "ways of the law guild at large" - judges, legislators, regulators, and enforcers. Llewellyn argued that the legal philosophies implicit in American legal practice had been natural law, positivism and realism, each adopted in response to felt needs of a time. We must reckon with many other implicit "philosophies" to understand the workings of the law guild, not the least of which has been racism. Others, maternalism and paternalism, my foci here, persist in American law, despite women's progress toward equality. Both maternalism and paternalism were strikingly present in a recent decision of the U.S. Supreme Court, Gonzales v. Carhart, upholding the federal Partial-Birth Abortion Ban Act.

October 16, 2007 in Abortion Bans, Gonzales v. Carhart, Scholarship and Research | Permalink | Comments (0) | TrackBack (0)

Wednesday, August 8, 2007

Judith Warner: Poisonous Choices, Women at Risk

Guest columnist for the New York Times Judith Warner has published a column arguing that partial birth abortion bans are dangerous for women's health.  Warner claims that:

      When the Supreme Court voted 5 to 4 to uphold the federal Partial-Birth Abortion Ban Act this spring, the ambivalently pro-choice public was largely quiescent, believing, as Congress had previously ruled, that the procedure was “gruesome and inhuman,” medically unnecessary, highly controversial in the medical community and so rare as to be little missed.

     What’s clear, however, as the ban has become a reality, is that fetuses will be spared no brutality. Second trimester abortion is still legal and the most common method for it — dismembering a fetus inside the womb before removing it in pieces — is no less awful to contemplate than the outlawed procedure, in which an intact fetus’s skull was punctured and collapsed to ease its removal. But women are now more at risk. And doctors have been forced into a danger zone where they must weigh what they believe to be best medical practices against the need to protect themselves from the threat of prosecution.

The full text of the article is available to Times Select subscribers, and a more detailed summary can be found in this Kaiser Daily Report.

August 8, 2007 in Abortion Bans, Gonzales v. Carhart | Permalink | Comments (0) | TrackBack (0)

Tuesday, July 17, 2007

LA Gov. Signs Abortion Ban and Fetal Pain Measure

The Associated Press reported Friday:

Gov. Kathleen Blanco signed legislation Friday that penalizes doctors who perform a late-term abortion procedure, making Louisiana the first to outlaw the surgery since a similar federal ban was upheld this year.

The new law allows the procedure only when the mother's life would be endangered without it. It would be a crime in all other cases, including when the pregnancy is expected to cause health problems for the mother. 

The statute mirrors a federal ban that President Bush signed into law in 2003 and upheld in April by the U.S. Supreme Court....

The Democratic governor on Monday signed legislation requiring that all women seeking an abortion be notified that fetuses can feel pain by 20 weeks gestation, and doctors who perform the procedure to discuss the availability of painkillers for fetuses.... Opponents say doctors don't agree on whether fetuses can feel pain at 20 weeks.

Note that bans on so-called "partial-birth abortion" do not apply only to abortions performed late in pregnancy, but affect abortions performed throughout the second trimester.  Moreover, in 2000 the Supreme Court found that Nebraska's ban targeted not only the "dilation and extraction" procedure described in the Associated Press story, but also prohibited the most common method of second-trimester abortion.  Although the Supreme Court this year upheld the virtually identical ban passed by Congress, the about-face is attributable to a newly composed Court that no longer included Justice Sandra Day O'Connor.  Find more information here on the deceptive nature and sweeping reach of "partial-birth abortion" bans, and on the Court's decision in Gonzales v. CarhartSee here for all of this blog's posts on Gonzales v. Carhart.

July 17, 2007 in Abortion, Abortion Bans, Gonzales v. Carhart | Permalink | Comments (0) | TrackBack (0)

Friday, June 22, 2007

Michael Dorf on Gonzales v. Carhart and The Karl Rovification of the Supreme Court

Michael Dorf comments, at Dorf on Law:

As I noted last week (here), Tom Goldstein is projecting the current Supreme Court Term as VERY conservative (here).  Jeff Toobin makes the same point in The New Yorker (available here, and while you're over at The New Yorker, check out Seymour Hersh's utterly frightening account of what happened to General Taguba for uncovering the truth about Abu Ghraib, but then come back to Dorf on Law). Here I'll tentatively observe something about the character of the 5-4 decisions we're seeing. Perhaps a close reading of all of this Term's cases wouldn't bear this out, but my subjective and informal impression is that when the Court splits 5 (Roberts/Scalia/Kennedy/Thomas/Alito) - 4 (Stevens/Souter/Ginsburg/Breyer), the 5 are basically ignoring or dismissing objections raised by the 4.

Gonzales v. Carhart is a nice example. The dissenters were practically running around with their hair on fire saying that there was no way to reconcile the decision with the 2000 decision in Nebraska v. Carhart; yet Justice Kennedy's opinion, while drawing a plausible distinction with respect to the notice issue, basically punted on distinguishing the Nebraska case with respect to the health exception. The majority could have said it was overruling the Nebraska case, but for their own reasons they didn't want to, so their response to the dissenters was the jurisprudential equivalent of a shrug.

June 22, 2007 in Gonzales v. Carhart, In the Courts, Supreme Court | Permalink | Comments (0) | TrackBack (0)

Friday, June 8, 2007

Gloria Feldt: Court decision on abortion disrespects women, doctors

Gloria Feldt (former President of Planned Parenthood Federation of America) writes in the McClatchy-Tribune:

The Supreme Court's recent decision upholding the federal abortion ban drips with disrespect for women and their physicians. The case, known as Gonzales v. Carhart, marks the culmination of a major campaign to limit access to abortion and the beginning of the next onslaught to outlaw all reproductive rights for all women at all times....

This decision invites Congress and the states to ban other abortion methods in the future, and the logic of the justices undermines the right to an abortion.

Supporters of women's reproductive rights, women's health and justice for women need to take three steps to reverse the damage of Gonzales v. Carhart.

The article was prepared for The Progressive Media Project.

June 8, 2007 in Abortion, Abortion Bans, Gonzales v. Carhart, In the Courts, Supreme Court | Permalink | Comments (0) | TrackBack (0)

Thursday, June 7, 2007

LA Times: "For some, antiabortion is all or nothing"

Stephanie Simon writes in yesterday's L.A. Times:

As they gathered Tuesday for a national strategy session, antiabortion activists faced an unexpected revolt in their own ranks. Some of the biggest groups in the movement, including Focus on the Family and National Right to Life, are under attack from fellow activists who accuse them of turning a godly cause into a money-grubbing industry....

Those groups have raised tens of millions of dollars and trumpeted victory after incremental victory in the 34 years since Roe vs. Wade legalized abortions. But about 1 in every 5 pregnancies in the U.S. still ends in abortion. Deeply frustrated, several small antiabortion groups have launched a campaign to force their movement back to an absolutist position: No more compromises, no more half-steps, just an all-out effort for an all-out ban.

They are making their position clear in full-page ads that will run in conservative publications over the next few months. They are urging donors to stop contributing to groups that focus on making it more difficult — but not impossible — for women to obtain abortions....

Tension between the incremental and absolutist camps has existed in the antiabortion movement from the beginning. It's bursting into the open now in part because of the recent U.S. Supreme Court ruling on the Partial Birth Abortion Ban Act.

See this blog's posts about the Supreme Court's decision, Gonzales v. Carhart.

June 7, 2007 in Abortion, Abortion Bans, Anti-Choice Movement, Gonzales v. Carhart | Permalink | Comments (0) | TrackBack (0)

Monday, June 4, 2007

Wisconsin Abortion Ban Cannot Be Enforced Despite U.S. Supreme Court Ruling, State AG Says

Via the Kaiser Daily Women's Health Policy Report:

Wisconsin Attorney General J.B. Van Hollen (R) in a legal opinion released on Thursday said that the state's ban on so-called partial-birth abortion likely cannot be enforced because the law is based on a stricken Nebraska law and not the federal law (S 3) that was recently upheld by the U.S. Supreme Court, the AP/Winona Daily News reports (AP/Winona Daily News, 6/1). The Wisconsin measure, signed into law in 1998, prohibits abortions "in which a doctor partially delivers the fetus and then destroys it," with exemptions for cases to protect the life of the woman.

The 7th U.S. Circuit Court of Appeals in April 2001 found the law unconstitutional, citing a June 2000 Supreme Court ruling that struck down the Nebraska law, and U.S. District Judge John Shabaz in May 2001 issued an injunction prohibiting enforcement of the measure (Kaiser Daily Women's Health Policy Report, 5/31/01). The Supreme Court in the 2000 Stenberg v. Carhart decision struck down the Nebraska law because it lacked an exception to protect the health of pregnant women. However, the court last month in a 5-4 ruling upheld a federal law banning partial-birth abortion (Kaiser Daily Women's Health Policy Report, 4/25).

Van Hollen said a federal judge would not lift the injunction on the Wisconsin law because the state's definition of banned procedures is unconstitutionally vague, the Milwaukee Journal Sentinel reports (Marley/Forster, Milwaukee Journal Sentinel, 5/31). He added that the upheld federal law contains a more specific and narrow definition of the banned procedures (AP/Winona Daily News, 6/1).

June 4, 2007 in Abortion, Abortion Bans, Gonzales v. Carhart, State and Local News | Permalink | Comments (0) | TrackBack (0)

U.S. Court of Appeals for the Sixth Circuit Strikes Down Michigan’s Third Attempt at Ban on Abortion

From the ACLU's press release:

The American Civil Liberties Union, Center for Reproductive Rights, and Planned Parenthood Federation of America today hailed a decision by the U.S. Court of Appeals for the Sixth Circuit striking down Michigan’s third attempt at a dangerous and extreme ban on abortion.  The ban would prohibit nearly all abortions and fails to provide an adequate exception to protect women’s health. ...

In today’s decision, the U.S. Court of Appeals for the Sixth Circuit upheld a federal district court ruling from September 2005 striking down the Legal Birth Definition Act.  Today’s decision notes that “the Michigan legislature appears to have cast a wide net that would prohibit virtually all methods of abortions” from the earliest stages of pregnancy.  The court also distinguishes this ban from the federal ban recently upheld by the U.S. Supreme Court in Gonzales v. Carhart.  In fact, today’s court held that the Michigan language “pushed almost every boundary that the Supreme Court has imposed for these types of laws.”

Read the opinion (via How Appealing).

June 4, 2007 in Abortion, Abortion Bans, Gonzales v. Carhart, In the Courts | Permalink | Comments (0) | TrackBack (0)

Sunday, June 3, 2007

Wash. Post: "Supreme Court Ruling Brings Split in Antiabortion Movement"

Alan Cooperman reports in today's Washington Post on the rift among anti-choice activists regarding so-called "partial-birth abortion" bans, a split that is belatedly (the "partial-birth abortion" campaign started well over a decade ago) seeing all kinds of media attention.  (See also: Abortion Foes Criticize One of Their Own).  From the Washington Post article:

In a highly visible rift in the anti-abortion movement, a coalition of evangelical Protestant and Roman Catholic groups is attacking a longtime ally, Focus on the Family founder James C. Dobson.

Using rhetoric that they have reserved in the past for abortion clinics, some of the coalition's leaders accuse Dobson and other national antiabortion leaders of building an "industry" around relentless fundraising and misleading information.

At the center of the dispute is the Supreme Court's April 18 decision upholding the Partial-Birth Abortion Ban Act. ...

Dobson and many other antiabortion leaders hailed the 5 to 4 ruling as a victory; abortion-rights organizations saw it as a defeat. But six weeks later, its consequences have been, in part, the reverse.

Unfortunately, accuracy in reporting on the so-called "partial-birth abortion" bans hasn't advanced over the last 15 years either.  This story's description of the procedure that is purportedly targeted by the bans buys into the same errors that have fueled public misperceptions of the ban, misperceptions that now seem impossible to reverse.  For more on this, see: Clinic Bombings and Infanticide Rhetoric: "Partial-Truth Abortion" Is a Dangerous and Duplicitous Game

June 3, 2007 in Abortion, Abortion Bans, Anti-Choice Movement, Gonzales v. Carhart, In the Media | Permalink | Comments (0) | TrackBack (0)

Friday, June 1, 2007

NY Times Supreme Court Memo: Oral Dissents Give Ginsburg a New Voice on Court

Linda Greenhouse writes in today's New York Times:

Whatever else may be said about the Supreme Court’s current term, which ends in about a month, it will be remembered as the time when Justice Ruth Bader Ginsburg found her voice, and used it.

Both in the abortion case the court decided last month and the discrimination ruling it issued on Tuesday, Justice Ginsburg read forceful dissents from the bench. In each case, she spoke not only for herself but also for three other dissenting colleagues, Justices John Paul Stevens, David H. Souter and Stephen G. Breyer.

But the words were clearly her own, and they were both passionate and pointed. ... To read a dissent aloud is an act of theater that justices use to convey their view that the majority is not only mistaken, but profoundly wrong. It happens just a handful of times a year. Justice Antonin Scalia has used the technique to powerful effect, as has Justice Stevens, in a decidedly more low-key manner.

The oral dissent has not been, until now, Justice Ginsburg’s style. She has gone years without delivering one, and never before in her 15 years on the court has she delivered two in one term. In her past dissents, both oral and written, she has been reluctant to breach the court’s collegial norms. “What she is saying is that this is not law, it’s politics,” Pamela S. Karlan, a Stanford law professor, said of Justice Ginsburg’s comment linking the outcome in the abortion case to the fact of the court’s changed membership. “She is accusing the other side of making political claims, not legal claims.”

See also this post (which includes links to the two decisions).

June 1, 2007 in Gonzales v. Carhart, In the Courts, Supreme Court | Permalink | Comments (0) | TrackBack (0)

Tuesday, May 29, 2007

Justice Ginsburg Again Bemoans Court's Lack of Regard for Women's Equality

Poor, lonely Justice Ginsburg.  In today's Washington Post, Robert Barnes reports on Justice Ginsburg's frustration with the Supreme Court's decision yesterday making it more difficult for workers to sue for unequal pay:

The decision moved Justice Ruth Bader Ginsburg to read a dissent from the bench, a usually rare practice that she has now employed twice in the past six weeks to criticize the majority for opinions that she said undermine women's rights.

Speaking for the three other dissenting justices, Ginsburg's voice was as precise and emotionless as if she were reading a banking decision, but the words were stinging.  "In our view, the court does not comprehend, or is indifferent to, the insidious way in which women can be victims of pay discrimination," she said.

Last month, Ginsburg rebuked the same five-justice majority for upholding the federal Partial Birth Abortion Ban Act and for language in the opinion that she said reflected "ancient notions about women's place in the family and under the Constitution -- ideas that have long since been discredited."

Read the decision in Ledbetter v. Goodyear Tire & Rubber Co.  Read Justice Ginsburg's dissent in Gonzales v. Carhart (addressing the federal abortion ban).

May 29, 2007 in Gonzales v. Carhart, In the Courts, Miscellaneous, Supreme Court | Permalink | Comments (0) | TrackBack (0)