Court strikes down Va. late-term abortion ban

[Achilles]

Link

RICHMOND, Va. - A Virginia law banning a type of late-term abortion is still unconstitutional, even though a similar federal ban was upheld by the U.S. Supreme Court, a federal appeals court ruled Tuesday.

 

The 2-1 decision by a panel of the 4th U.S. Circuit Court of Appeals affirms the same court's 2005 ruling striking down the law. The Supreme Court had ordered the appeals court to take another look at Virginia's statute after the ruling on the federal ban.

Good for them.

 

I thought this quote was rather interesting:

"It is disappointing that yet again just two people can thwart the will of the people, the action of a legislature, and simple justice for nearly born children," said Victoria Cobb, the organization's president.

Apparently there are more than a few people that don't agree with the Constitutional duty of judicial review.

 

Finally:

According to the Center for Reproductive Rights, 16 of the 27 state bans on the late-term abortion procedure have been permanently struck down by the courts. Eleven bans remain in effect.

This means that there are more than a few opportunities to overturn the 2007 U.S. Supreme Court ruling during future administrations.

[Jae Onasi]

Late term abortions are nothing more than sanctioned infanticide. The deliveries are the same whether the child lives or dies, so there is no difference for the woman if she delivers prematurely (if prior to week 36 gestation) or at term and gives the baby up for adoption, or if she kills the baby. With the exception of a condition where the baby cannot live outside the womb, such as anencephaly, there is no compelling reason why killing the child is preferable to giving it up for adoption. That is the sole exception where abortion is acceptable, and it is the sole exception anyone who honestly values life should make.

[JCarter426]

The matter isn't about abortion at all, however, but rather the (un)constitutionality of the law.

[mimartin]

The 4th U.S. Circuit Court of Appeals is not saying that late-term abortion are right, they are saying the Virginia Law banning that type of abortion is unconstitutional. There is still a federal law that bans “partial-birth abortions” that has been upheld, so far, as constitutional.

 

I agree that late-term abortions should only be done as a medical necessity; according to the judgment of the court, the Virginia Law seemed to be attempting to restrict other types of abortions in it language.

[Jae Onasi]

The matter isn't about abortion at all, however, but rather the (un)constitutionality of the law.

 

Please explain to me how the constitutionality of an abortion law is not about abortion.

[JCarter426]

Because if the law were about anything else, the same would apply; the law would be unconstitutional, and would be ruled as so.

[mimartin]

Please explain to me how the constitutionality of an abortion law is not about abortion.

I have no way of knowing what JCarter426 was writing about, but according to the court in this case:

The appeals court cited a key difference between the federal and state bans on the procedure that abortion opponents call "partial-birth abortion." The federal law protects doctors who set out to perform a legal abortion that by accident becomes the banned procedure. The Virginia statute provides no such protection.[/Quote]

According to the Center for Reproductive Rights, 16 of the 27 state bans on the late-term abortion procedure have been permanently struck down by the courts. Eleven bans remain in effect.[/Quote] I understand that different make up of each court of appeal will effect the decision, but I also believe language of the law and where the burden of guilt is placed will effect if the law is constitutional or not.

 

I don’t see this as a victory for anti-choice or pro-choice. I see it as the court saying rewrite the law with protections against innocent mistakes. Imprisoning someone that makes an honest mistake is something I always hope is unconstitutional.

[JCarter426]

I have no way of knowing what JCarter426 was writing about...

McCulloch v. Maryland.

 

The sovereignty of a state extends to everything which exists by its own authority, or is introduced by its permission; but does it extend to those means which are employed by congress to carry into execution powers conferred on that body by the people of the United States? We think it demonstrable, that it does not. Those powers are not given by the people of a single state. They are given by the people of the United States, to a government whose laws, made in pursuance of the constitution, are declared to be supreme. Consequently, the people of a single state cannot confer a sovereignty which will extend over them.

In other words, a local law cannot contradict a federal law, as was the case here; as you said, Virginia would find a doctor who made an honest mistake legally responsible, while federal statutes would not.

[jonathan7]

I can't comment on the legislature, however I find it illogical to allow an abortion this late into term, if the mother wanted an abortion, why didn't she have it much earlier? And given that she has pretty much been through the most uncomfortable stage, why not just have the kid and give it up for adoption?

[mimartin]

I can't comment on the legislature, however I find it illogical to allow an abortion this late into term, if the mother wanted an abortion, why didn't she have it much earlier? And given that she has pretty much been through the most uncomfortable stage, why not just have the kid and give it up for adoption?

It could be a medical necessity (the mother’s life is at risk). I’m against late term abortion except in the case of medical necessity, but I also applauded the courts decision in this decision.

[Jae Onasi]

I can't think of any late-term health situation for the mother that would require killing the baby instead of delivering him or her.

 

If this was just a situation to prevent someone being unfairly accused when a procedure goes wrong I can live with that, but I find it hard to believe that this would 'accidentally' happen except in the most unusual of cases.

[mimartin]

If this was just a situation to prevent someone being unfairly accused when a procedure goes wrong I can live with that, but I find it hard to believe that this would 'accidentally' happen except in the most unusual of cases.

If it is so unusual, then why not included it in the language of the law? After all, the federal law does.

 

Since I bow to your knowledge in the medical field, it sounds like the Virginia law really was attempting to restrict other forms of abortion by its language.

[Jae Onasi]

If it is so unusual, then why not included it in the language of the law? After all, the federal law does.

.

The folks who make the laws usually aren't medical professionals and don't think of these things all the time, if they're aware of them in the first place.

[El Sitherino]

Abortion Legislation thread, people. Please keep the "When is it okay to abort the fetus?" discussion somewhere else.

 

 

Regardless of opinions on abortion it's absurd to find someone criminally responsible on the state level, but completely innocent on a federal level. Especially if you're discussing something like the matter of mass-murder.

 

If that is what one wishes to believe abortion is.

[Totenkopf]

It does raise questions about exactly how they see such an "accident" occurring in the first place. We're no longer in the "dark ages" of medicine, so there's probably enough equipment out there to know what they're doing before they do it.

[JCarter426]

Well, I'm just speculating here, but the makers of the law (the federal one that protects the doctor) probably had in mind a scenario in which a patient lies about the conception date. Not the doctor's fault if his or her patient lies to them.

 

But you're right; there probably is adequate technology out there for the doctor to know even if the patient lies. Still, better safe than sorry, I say.

[Achilles]

While the lack of protection for physicians was part of the decision, I think that it's important to highlight this part of the article as well:

The state law is unconstitutional "because it imposes an undue burden on a woman's right to obtain an abortion," Judge M. Blane Michael wrote in the majority opinion, joined by Judge Diana Gribbon-Motz.

 

The ruling means Virginia women will continue to have access to safe abortions through the second trimester of pregnancy, said Stephanie Toti, the Center for Reproductive Rights lawyer who represented abortion providers in the case.

 

"The court recognized Virginia's law is extreme — that it effectively banned the most common method of second-trimester abortion, and that is unconstitutional," Toti said.

Remember that the ban seeks completely outlaw the procedure. Period.

 

Possible reasons for why the procedure might be necessary were not regarded in the law (and are also outside the scope of this thread), but I do think it's important to note that this is (was?) an attempt for the judicial branch to govern the field of medicine. Unlike the supreme court overturning unconstitutional laws, this is an example of over-reaching of constitutional powers.

[JCarter426]

Possible reasons for why the procedure might be necessary were not regarded in the law (and are also outside the scope of this thread), but I do think it's important to note that this is (was?) an attempt for the judicial branch to govern the field of medicine. Unlike the supreme court overturning unconstitutional laws, this is an example of over-reaching of constitutional powers.

Indeed. The sovereignty of a court extends to everything which exists by its own authority, or is introduced by its permission; but does it extend to those means which are employed by congress to carry into execution powers conferred on that body by the people of the United States?

 

Still, they do (did? ) have another justifiable reason (as previously mentioned). Yet their motives are questionable, as was the case with the Massachusetts gay marriage ruling, and the later refusal to take the matter to the legislature. The first part was legally sanctioned, but the second was really pushing the limit of judicial power.

[Achilles]

Yes and no. Congress, as a representative body, is supposed to act on the behalf of the people. Yes, it is their place to utilize their constitutional powers to implement constitutional laws, but it is the role of the judicial branch to overturn laws that are passed but unconstitutional. This is not what happened in the 2007 Supreme Court ruling though. The Court sought jurisidiction over a profession, not legislature.

 

EDIT: You added more

Still, they do (did? ) have another justifiable reason (as previously mentioned).

Indeed, however I would question which of these considerations was primary and which was secondary. IMHO, sometimes the "why" is more important than the "what".

 

Yet their motives are questionable, as was the case with the Massachusetts gay marriage ruling, and the later refusal to take the matter to the legislature. The first part was legally sanctioned, but the second was really pushing the limit of judicial power.

Possibly. There may have been political consideration involved as well.

[JCarter426]

Yes and no. Congress, as a representative body, is supposed to act on the behalf of the people. Yes, it is their place to utilize their constitutional powers to implement constitutional laws, but it is the role of the judicial branch to overturn laws that are passed but unconstitutional. This is not what happened in the 2007 Supreme Court ruling though. The Court sought jurisidiction over a profession, not legislature.

I know; I just felt like rephrasing the Supreme Court's own ruling to put them in perspective.

 

Anyway, in the case of the gay marriage ruling, the court's ruling simply stated that gay marriage wasn't unconstitutional. There was absolutely no reason why the matter shouldn't be taken to the legislature.

 

This matter is different, though, but many of the principles are the same.

 

EDIT: So did you.

 

Indeed, however I would question which of these considerations was primary and which was secondary. IMHO, sometimes the "why" is more important than the "what".

Agreed. Enforcing an unjust law may be wrong, but so is taking down an unjust law due to unjust motives.

 

Possibly. There may have been political consideration involved as well.

Oh, definitely. However, I do find it odd that they would refuse to take the matter to the legislature, when there was a 99% chance that the state legislature would decide in favor of gay marriage.

[Wedge Suron]

There's a discussion going on currently in England, but it's not the ban part just a decrease of weeks.

[mimartin]

Agreed. Enforcing an unjust law may be wrong, but so is taking down an unjust law due to unjust motives.

I could not disagree more with you on this. IMO I don’t care what the law is or what it concerns, if the law is unjust and unduly places an unjustified burden on society or the individual then it should be removed from the books and I don’t care what the motivation is of the court or other official removing the law from the books, justifiable or not. Removal the unjust law is all that matters to me.

 

Let us remember that it is all politics and the motivation is never about justice in making or removing a law. It is always about the next election.

[Achilles]

There's a discussion going on currently in England, but it's not the ban part just a decrease of weeks.

24 week to 22, right? Something about the viability of the fetus outside of the womb due to improved medical techniques?

 

It sounds good, however I don't know if the British courts have the same views on women's rights as U.S. courts do. I always got the impression that Europe was more progressive than the U.S. in those regards, but I must admit I really don't know for sure.