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Thursday, August 26, 2004

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9 Comments»

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  1. that’s poor wording in the opening paragraph of the article. he is following the supreme court’s ruling that any abortion limiting law must contain exceptions in the case of dangers to the woman’s health.

    And i believe he was refering to the Supreme Court’s 2000 ruling in Stenberg v. Carhart against a Nebraska statute that says that an exception must be made in the case where a woman’s life is in danger because it is a less risky procedure.

    Which really just boils down to saying that the mother’s life has higher standing legally when the choice has to be made between the life of the mother and the life of the unborn fetus.

    Comment by Eric — Thursday, August 26, 2004 @ 5:31 pm

  2. Actually, the issue is a “health” provision, not a life provision-and a “health” provision could be interpeted rther broadly. I would agree that if the choice is between the other OR the baby, you go with the mother. However, I am radically unconvinced that this procedure is ever about that choice. Under what possible circumstances would partially delivering the fetus and then puncturing its skull be in the interest of the mother? It makes no sense whatsoever.

    And I recognie that the reference is to a SC case. But my questions still stand.

    Comment by Steven Taylor — Thursday, August 26, 2004 @ 7:53 pm

  3. Even NPR noted that the full judge’s opinion was less than helpful to pro-abortion advocates. He recognized that “fetuses” can feel pain and that some abortion procedures apparently cause such pain, and - more importantly - he described the partial birth procedure as particularly “barbaric.”

    But he felt constrained by stenberg. If I were in Congress, I’d retool the thing and send it up for another go ’round with a health of the mother clause and watch NARAL squirm.

    Comment by bryan — Thursday, August 26, 2004 @ 8:48 pm

  4. Yes, the judge was quite adamant about the barbarism of the procedure. And I too hope that we can stop doing this procedure. My further hope is that we, as a society, can come to some sort of agreement between pro-lifers and pro-choicers so we can go on to tackle other pressing problems of our society. Maybe, ban abortion, after the fetus can survive outside the womb (~5 months). I don’t know.

    I sometimes wonder if this argument hasn’t taken our society the focus on the social conditions which resulted in a “need” to have abortions in the first place. Those conditions still exist and we’re still not addressing them - societal disapproval of mothers who give up their babies, medical support for poor mothers, family support, decisions about pre-marital sex, etc…

    Comment by Eric — Friday, August 27, 2004 @ 11:01 am

  5. I am unaware of the “Women’s Health” (or anyone’s health, for that matter) clause in the constitution.

    Strange how the Supreme Court doesn’t agree with this.

    Simple google searches show that your argument is essential identical to one abortion foes already tried back in 1971 and was discarded as bollocks by the courts. From Constitutional Law and Abortion:

    United
    States v. Vuitch, 402 U.S. 62 (1971), [District Court opinion] In this frequently overlooked pre-Roe abortion case, the court, per Black (5-4, part I on jurisdiction and 5-4, part II on the merits) in a mixed coalition reversing a district court decision, upheld a District of Columbia abortion statute against Procedural Due Process claims. A majority of the court (Black, C.J.Burger, Harlan, White and Blackmun) held that the “health” exception was not unconstitutionally vague.

    This case did not consider substantive or privacy claims-these would appear in Roe.

    Originally, abortion law opponents tried to undermine restrictive laws that had “health” exceptions by arguing that the word “health” was unenforceablly vague. This did not work in Vuitch, but it did in California. See, (4-3 decision of state Supreme Court) People v. Belous, 80 Cal.Rptr. 354, 458 P.2d 194 (1969), cert. denied 397 U.S. 915 (1970). It is somewhat interesting in that Blackmun, Roe’s author, cast the deciding vote [at 98] to uphold the statute, which is quite similar to the Texas statute invalidated in Roe. Most interesting is Douglas’s partial dissent where he takes the opportunity to make a prophetic dry-run on the Roe argument, even citing the Texas district court opinion in that case. See Vuitch, at 74. Black dismisses this as a mis-placed procedural argument, at 73. [Black would die before Roe could be decided.]

    Comment by Hal — Friday, August 27, 2004 @ 12:24 pm

  6. I am unaware of the “Women’s Health” (or anyone’s health, for that matter) clause in the constitution.

    Strange how the Supreme Court doesn’t agree with this.

    Simple google searches show that your argument is essential identical to one abortion foes already tried back in 1971 and was discarded as bollocks by the courts. From Constitutional Law and Abortion:

    United
    States v. Vuitch, 402 U.S. 62 (1971), [District Court opinion] In this frequently overlooked pre-Roe abortion case, the court, per Black (5-4, part I on jurisdiction and 5-4, part II on the merits) in a mixed coalition reversing a district court decision, upheld a District of Columbia abortion statute against Procedural Due Process claims. A majority of the court (Black, C.J.Burger, Harlan, White and Blackmun) held that the “health” exception was not unconstitutionally vague.

    This case did not consider substantive or privacy claims-these would appear in Roe.

    Originally, abortion law opponents tried to undermine restrictive laws that had “health” exceptions by arguing that the word “health” was unenforceablly vague. This did not work in Vuitch, but it did in California. See, (4-3 decision of state Supreme Court) People v. Belous, 80 Cal.Rptr. 354, 458 P.2d 194 (1969), cert. denied 397 U.S. 915 (1970). It is somewhat interesting in that Blackmun, Roe’s author, cast the deciding vote [at 98] to uphold the statute, which is quite similar to the Texas statute invalidated in Roe. Most interesting is Douglas’s partial dissent where he takes the opportunity to make a prophetic dry-run on the Roe argument, even citing the Texas district court opinion in that case. See Vuitch, at 74. Black dismisses this as a mis-placed procedural argument, at 73. [Black would die before Roe could be decided.]

    Comment by Hal — Friday, August 27, 2004 @ 12:25 pm

  7. I am unaware of the “Women’s Health” (or anyone’s health, for that matter) clause in the constitution.

    Strange how the Supreme Court doesn’t agree with this.

    Simple google searches show that your argument is essential identical to one abortion foes already tried back in 1971 and was discarded as bollocks by the courts. From Constitutional Law and Abortion:

    United
    States v. Vuitch, 402 U.S. 62 (1971), [District Court opinion] In this frequently overlooked pre-Roe abortion case, the court, per Black (5-4, part I on jurisdiction and 5-4, part II on the merits) in a mixed coalition reversing a district court decision, upheld a District of Columbia abortion statute against Procedural Due Process claims. A majority of the court (Black, C.J.Burger, Harlan, White and Blackmun) held that the “health” exception was not unconstitutionally vague.

    This case did not consider substantive or privacy claims-these would appear in Roe.

    Originally, abortion law opponents tried to undermine restrictive laws that had “health” exceptions by arguing that the word “health” was unenforceablly vague. This did not work in Vuitch, but it did in California. See, (4-3 decision of state Supreme Court) People v. Belous, 80 Cal.Rptr. 354, 458 P.2d 194 (1969), cert. denied 397 U.S. 915 (1970). It is somewhat interesting in that Blackmun, Roe’s author, cast the deciding vote [at 98] to uphold the statute, which is quite similar to the Texas statute invalidated in Roe. Most interesting is Douglas’s partial dissent where he takes the opportunity to make a prophetic dry-run on the Roe argument, even citing the Texas district court opinion in that case. See Vuitch, at 74. Black dismisses this as a mis-placed procedural argument, at 73. [Black would die before Roe could be decided.]

    Comment by Hal — Friday, August 27, 2004 @ 12:26 pm

  8. But what is the specific reasoning that gives active Constitutional SUPPORT to a MANDATORY ‘health of the mother exception’ to a limited ban on a single method, given that other methods exist in cases of true life-or-death situations and and the majority of the pregnancy occurs before the time limit?

    I know Breyer writes that the pregnancy causing harm should not be the primary consideration in such judgements, too, even if we accept the reasoning that such judgements are Constitutionally mandated.

    And why do I get the feeling that an attempt to say ‘mandated for the survival of the mother’ would get denied as too limited?

    Comment by Dave — Friday, August 27, 2004 @ 1:15 pm

  9. Dave, for whatever its worth, that method apparantly has less risks to the mother’s health than other methods. At least that’s what the court said in 2000.

    Comment by Eric — Friday, August 27, 2004 @ 3:58 pm

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