Redstate

Did they overturn it beause their was no health exception?  Or did they reject it as violating the "Constiutional" right to abortion?

From my very quick read, it appears that the actual judgment in the case is far narrower than described; see http://www.ned.uscourts.gov/carhart/403cv3385_judgment.pdf.  The Court appears to have struck down the statute to the extent it prevented a partial-birth abortion where the fetus is not viable in the medical opinion of the woman's doctor.  I've not studied the case, however, and would gladly accept correction.

One more item:  I'm not sure that Chief Judge Richard G. Knopf is accurately described as an "out-of-control liberal judge" and, even if he were, this opinion hardly seems the product of an "out-of-control liberal judge" -- particularly in light of Roe (a precedent that Judge Knopf is required to follow).    

I don't know the Nebraska judges at all so your point is well made.  Nevertheless, it is another example of how decisions are taken away from the people's representatives and relegated to an elite group of robbed men and women.  Ultimately, you are correct that they are interpreting the Supreme Court's rulings... but that's part of the problem.  When the Supreme Court's rulings are trumping the Constitution, we need judges who will rule for the Constitution.  Then, the Supreme Court will have to overrule the lower judges again and again showcasing their contempt for actually reading the document they are sworn to defend.

In the end, any focus on judges overruling popular legislation will help turn on the conservative base and may even help lead to some judicial reform.

Legislatures, even in Nebraska, can remove judges through the impeachment process. This practice ought to be encouraged for each session of any legislature.  There are always judges who need to be out of there.

He's a federal district judge. not a nebraska judge.

  There was a lady that was doped up recently and she refused a C-Section, which cost her the life of her baby. She was being prosecuted for murder. Why aren't these women that are undergoing this procedure prosecuted for the same thing?

  C-Section? I guess that puts the mother's life at risk. W/out a C-Section and aborting definitely ends the life of a child. I apologize for using the word mother above. Mothers risk their lives for the sake of their offspring's life. You can't call these women mothers. I guess I need to find something positive from this decision; my wife is a heroic "mother".

I hate having to mourn this decision and wish there were a way to impeach these justices.

To all of the murdered unborn out there-

I'm sorry the woman that got pregnant with you doesn't want you to call her mommy. I'm sorry she is choosing to end your life rather than risk her own to allow you the right to live. There are billions of mothers out there that would have, that woman is just confused. I care about you even if she doesn't.

Um, I think you mean the 8th Circuit Court of Appeals, which includes the state of Nebraska in its jurisdiction.  District Courts don't vote 3-0, because there is only one judge sitting (and multiple personalities are generally grounds for removal via impeachment).  It's the Circuit Court level that holds three-judge panels.

Here is their website.  I don't know how that fits in with the federal judiciary structure.  But just an fyi.

Evidently, it's a District Court opinion, authored by the Chief Judge of the District Court of Nebraska, Richard G. Kopf.

I couldn't get the original link to open, but the link to the judgement itself has Kopf as the only signatory, which is what I'd expect from a District Court opinion.  That is, I think the original post was incorrect to refer to this as a 3-0 opinion, since it appears that only Kopf was hearing this case.

If someone else can get the original link to open, could you check this out?

He can be impeached by Congress.  (Which I don't advocate.)

Von says that Roe is "a precedent that Judge Knopf is required to follow."  

Required by whom?  Surely not by an informed conscience.

As I understand it (and I am not a lawyer) is that it is a sort of like a rule of thumb to follow previous judicial rulings, but it is not a requirement. Part of that reason is to have a consistent interpretation of the law over time. If the law says X and one judge rules Y, another judge at a later date should also rule Y, not Z. Now this doesn't necessarily apply to interpretations of different laws entirely, and as I understand it, it is also not a requirement to rule Y on law X.



Another other reason for having consistent rulings is a more practical one. You don't want to be overruled as a judge by a higher court. If a higher court's stance on an issue is known, you might as well stay consistent with that higher court's stance. After all, they will overrule you anyway, and being overruled seems to carry a small stigma in a judge's eyes.



In terms of requirements vs. rule of thumb, it seems that while it is not impossible for decisions to change from their historical context, it does require a higher burden of proof as to why those historical decisions should be considered wrong. As an example of this in action, consider the second amendment charges. Current gun-ban advocates would have us believe that the second amendment refered to a collective right to defense, not a personal right to own arms. However the Supreme Court has historically ruled in favor of the interpretation that it is a personal right, not a collective right. Hence, those who want to ban guns have a much higher burden of proof when challenging gun laws that appear to be supported by the second amendment.

Three different federal judges in three different areas of the country have found this law to be unconstitutional. This is a surprise to no one, particularly not to the sponsors of the bill, because Congress expressly chose not to follow the wording that the Supreme Court required in a prior case. Congress knew when it passed this law that it was an unconstitutional bill and it knew exactly what it had to do to make the law pass Constitutional muster. The whole law was a sham.

I don't really think that the folks in Congress who claim to be supporting the 'right to life' are. It appears from the repeated failures that they get that they are using the issue for themselves. They want to motivate the base, so to speak. They don't want a decent compromise. They want to have an unwinnable fight.

These so-called right-to-life Congressmen and Senators have consistently chosen to demand that unconstitutional bills be considered, rather than constitutional ones. They have supported bills that were guaranteed not to pass when a small amount of adjustment would have allowed them to see a real change in the law. They have never been willing to work with moderates on laws that would make a difference.

But please check the court rulings on the 2nd Amendment.  I believe you have things reversed.

I'd say working on a partial birth abortion ban is a compromise in and of itself.



"Let's put aside the subject of all abortions and work on only the small case where a baby is half way out of the womb. Can we at least protect that baby's life?"



Seems to me to be an attempt to reach a middle ground where there is more consensus of support. Of course, maybe the parties who are refusing to compromise are activist judges, meaning that only a law so riddled with loopholes as to be completely ineffective would be acceptable to them. That could also be a reasonable interpretation of this situation.

If Roe v. Wade was overturned and legislatures were allowed to do their job, we could compromise on this issue.  The 20% who believe abortion should be legal in every case (pro-abortion) and the 20% who believe it should be legal only in the case of the life of the mother (pro-life) would both be pushed aside for the 60% who think it should be legal and restricted (usually to cases of rape, incest, and life of the mother).  That would be a compromise and it would be law if we did the same thing every other country has done: allow the peoples' representatives to make the law instead of judges.

1. A judge is required to follow controlling authority.  Controlling authority is (typically) a prior case ("precedent") from a Court that is directly superior to the ruling Court.  For example, a District of Nebraska Court is usually required to follow precedent from the Eighth Circuit Court of Appeals (its immediate reviewing court) and from the U.S. Supreme Court (the ultimate reviewing Court in the Federal System).
   
2. A judge usually follows, is not required to follow, persuasive authority.  Persuasive authority is usually authority from a sister Court or from another court that is not directly superior to the ruling Court.  For instance, in the absence of controlling authority from the Eighth Circuit or the Supreme Court, a District of Nebraska Court may, but need not follow precedent from a sister District of Nebraska Court, from a sister Southern District of Indiana court, from a Seventh Circuit Court (a superior Court, but not a Court superior to a Court sitting in Nebraska), or, on issues of Federal law, from the Nebraska State Supreme Court (the highest Court for the Nebraska state courts).
   
3.  There are numerous and confusing exceptions to rules 2 & 3, which I won't get much into -- and, unless you are a lawyer who has been out a few years, it's probably not a good idea to attempt to guess at those exceptions.  (E.g., although a Federal District Court in Nebraska need not follow the Nebraska State Supreme Court on issues of Federal law, a Federal District Court in Nebraska is usually required to follow the Nebraska State Supreme Court on issues of Nebraska law (to the extent they do not conflict with Federal law) and, if the Nebraska Supreme Court has not ruled on the relevant issue of Nebraska law, the District Court usually must attempt to predict how the Nebraska Supreme Court would rule.*)
   
4.   The only truly established Second Amendment precedent of which I'm aware is that the Second Amendment applies only to the Federal Government.  States have been, and continue to be, free to regulate firearm ownership.  (Whether the Second Amendment provides personal or communal protection from federal government regulation I believe remains an open question.

Hope this helps.

von

*I.e., it need not follow intermediate appellate courts in Nebraska (if any exist), which are merely persuasive authority as to Nebraska law.  See, I told you it was confusing.

There are numerous and confusing exceptions to rules 2 & 3

I mean rules 1 & 2.  See how confusing it is?

Congress ignored a recent Supreme Court ruling when it wrote this statute. The Court had already ruled on necessary elements of this particular law, but Congress refused to accept them. Someone who is feeling cynical about the motivations of our people in Washington has an easy time seeing an intent on the part of Congress not to have a law that will succeed. When Congress passes a law that completely ignores a decision from a few years earlier, it is clear that they are relying on the Court or the inferior courts to overturn their decision.

This was not a compromise. This was an attack on a particularly gruesome procedure that is rarely necessary, but can really rile up the right-to-life crowd. A law that had been crafted to pass Court muster would have ended all but a handful of this sort of procedure, and would have ended the controversy, but that would have moved it out of the headlines. I don't know about right-to-life people in general, as far as I can tell, they are overwhelmingly genuine in their desire to end abortions, but it is clear to me that far too many politicians like having D&X, also known as partial birth, legal because it is such a good whipping boy for them. Right-to-life groups are being used.

I'm not much of a fan of Roe because it destroyed the political process that you are advocating, right in the midst of the discussion, but, even within Roe, states were allowed to enact appropriate regulations in both the second and third trimester as long as they could demonstrate a compelling state interest.

Most states have taken advantage of that flexibility and made appropriate rules. Some of the rules, particularly parental consent, have caused problems when badly written, but, generally, sensible rules have been put in place and have worked fairly successfully. It was only in the first trimester that the Court said that the state had no interest that could be sufficient to overcome the privacy interests of the pregnant woman.

I'm glad to find agreement on the ideal process, if not the final solution.

And I would go on to argue that protection of life is a compelling state interest as seen in state murder laws.  But hey "compelling state interest" is in the eye of the beholder, which in this case is the same court that can't find the words "no discrimination based on race" but can find a "right to privacy" in the Constitution.

While I am not sure if it has ever been openly challenged, the second amendment has been referred to many times in US Supreme Court decisions as applying to individuals, not militias, or collectives. You are absolutely right that states can regulate gun ownership--I was commenting on challenges to owning guns under a constitutional argument.



For example, the Dred Scott v. Sandford decision says (context is the rhetorical assumption that if negros were citizens):

"It would give to persons of the negro race . . . the right to enter every other State whenever they pleased, . . . and it would give them the full liberty of speech . . . ; to hold public meetings upon political affairs, and to keep and carry arms wherever they went."

In Presser v. Illinois, a law prohibiting parading with arms by military organizations (like militias, military units, etc) was challenged. The US Supreme Court upheld the Illinois law because it did not "infringe the right of the people to keep and bear arms" meaning that the individuals still had such rights, but that a state law could regulate a collective and public demonstration in which arms are displayed. Quite the opposite of how many would interpret the second amendment.



There have been a number of other challenges to other amendments in which the decisions equate personal application of other amendments including the second, fourth, etc. My point here is that even though the second amendment hasn't directly been challenged very often it is often referenced as an individual right by the US Supreme Court. Other lower courts may have different histories with writing about the second amendment, but I wasn't talking about them.

Considering that Kopf was nominated by George H. W. Bush, I doubt the controlling party in Congress would consider it for even a moment.

Required by whom?  Surely not by an informed conscience.

Informed concience or no, the requirement that judges follow precedent laid down by a superior Court is fundamental to our judicial system.  So, "required by the rule of law" is the direct answer to your query.  (The whole notion is to take the individual conscience of the judge out of it -- which is why we like to brag that we're ruled "by law, not men.")  Tamper with it at your peril.*

von

*A judge may practice civil disobediance, of course, by resigning his commission and thereby refusing to enforce the offending law.

Thank you for your helpful answers.  But what if you have an even more fundamental duty to protect innocent life?

Let's say legislators make a law that demands the death penalty for cocaine use.  You're a judge, and about once a month prosecutors ask you to condemn a ten-year-old boy to death under the law.  Most of your fellow and superior judges support and enforce the law, so there's "controlling precedent" or whatever that instructs you to let them all hang.  What ought you to do?

1. Kill them all.
   
   
2. Practice "civil disobedience" and resign, leaving the boys to be killed by others.
   
   
3. Stay on the court and follow your conscience by declaring every succeeding boy not guilty.

. . .made it clear that third-trimester abortions could be regulated by the states, though later decisions eroded this idea substantially.  I can't speak for the pro-life members of this forum, but I'd be satisfied with vigorous judicial oversight of all requests for third trimester abortions except when the life and/or physical health of the mother was in immediate danger--and in those cases, all medical personnel involved should have to testify under oath as to the reasons that require such a drastic procedure.  The specific procedure involved concerns me less than the fact that the radical portion of the pro-choice movement is for all intents and purposes demanding that abortion on demand extend all the way to the end of the third trimester, and that the courts are effectively supporting this position--this is completely unacceptable to me, and I suspect many other people who are otherwise pro-choice have the same problem with things as they stand.

Far be it from me to assume all intentions in Washington are good. But on this issue, I think your cynicism is unwarranted, or at least directed at the wrong group. I believe the very issue of partial birth abortion inherently dismisses any argument of "for the mother's protection." I think these judges are suspending all reason and standing common sense on it's head in this case.



Let me paint the picture for you. Baby's head is sticking out and mother's life is "in danger" at this point. Can anyone seriously argue that the best and fastest way to save the woman's life in that circumstance is to stab the baby's head, suck out it's brains, finish delivering the remains of the child, and then detatch the cord from the mother. Or is it just possible that pulling the child out and cutting the cord is in reality the fastest way of "terminating the pregnancy" at that point? This reasoning furthermore depends on the utter absurdity of arguing that the position in space and a matter of seconds (to change that position in space) determines whether the baby is life or not and would deserve equal protection for it's life just as the mother deserves. If you believe that, then you might as well make it a law that says if you have a kidney match for someone that needs it, you must by law undergo an operation to donate it to them. What an outrage that would cause.



Those judges really can't hid behind Roe v. Wade on the issue of partial birth abortion. That is why the ban was on such a narrow issue, one which fundamentally takes away the mother's health objection. I think they were right to word it that way. I also think that if you capitulate to judicial tyranny by only writing laws that you feel certain the tyrants will accept, then you might as well pack up the other two branches of government and leave it all to the judges. When you open it up to health issues of the mother, it becomes a loophole that can be made big enough to drive a truck through. What, emotional health? Psychological health? Mom might have to give up going to the health club in order to raise a child? Wouldn't want that you know--her health could be impaired as a result of lack of exercise--studies are conclusive after all...

Your example is a version of the age-old means/ends question:  when does a just end justify unjust means?  Clearly, if we allow judges to freely disobey the law, we will have judges who freely disobey laws that you might want to be enforced and justice will depend on the whims of the man (or woman) in the black robe -- which is to say, there will be no justice at all.  

I admit that the foregoing reasoning may slide off the slippery slope for you -- after all, you may say, merely refusing to enforce one unjust law will hardly doom the Republic -- but the danger is real.  We rely on judges to attempt to put their personal feelings aside and apply the law without personal bias.  They take an oath to that effect.  A judge who intends not to do that -- who intends to violate their judicial oath -- should not be a judge.*  

So, my over-intellectualized answer is, #2.  I don't pretend that it's the right answer, or that I won't be called to account for it.  It's my best answer, however.

I'll note two further things, which may help you to understand where I'm coming from:

1.  Having re-skimmed this case, it seems clear to me that the judge could have reached the contrary decision.  I don't think it would be right decision under the law, however --  it appears that the key Government witness conceded the key factual point in dispute.
   
2.  I am pro-life, but I am among those who recognize exceptions to the doctrine.  (I don't want to argue the point, except that I'll note, again, that I recognize that I may be called to account for it -- just as others may be called to account for their own positions.)  One of the exceptions I recognize is the life of the mother.  Given the way the law at issue appears to have been drafted, the judge's opinion accords with my moral preference.  (As a legal matter, I'd rather the question of abortion be returned to the states.)

von

*Whether a judge can apply the law without bias is another question, of course.

Which may not be this one... stated that the (nebulous) 'requirement' that the Supreme Court declared was Constitutionally required (although I've no idea what the reasoning was) of a statement (by Justice Kennedy) absolutely requiring that the 'least harmful' option not be restricted.

Thus a procedure which this opinion quoted as being approx 30 hours long (and yeah, this is OBVIOUSLY less harmful in a mystically 'letting the delivery process continue will harm the mother's health' situation than a Caesarian, right?) is somehow Constitutionally Required to be allowed; apparently the position is that eliminating one method of abortion within a restricted timeframe is going to cause harm, when 1) that method is available for most of the pregnancy, 2) there are other methods, and 3) the most common time this procedure is used, it demonstrably takes longer than methods that keep the child alive.

The only rational situation that would make this the most healthful option and still violate the law in question is where a mother-to-be is having problems with delivering AT ALL, and she's some kind of hemophiliac.  And even then I think medical technology is likely to overcome.

As I explained in another post, that explanation doesn't seem to apply in the least bit to partial birth abortion. In fact it appears to be a ruling on regular abortion, except that it is applied to a very special case where in fact it shouldn't apply. Under the guidelines you listed, you will see that partial birth abortion does not meet the letter of the law on a couple of counts.



First, the baby is partially delivered, meaning it's head is sticking out of the mother. This means two critical things. First, the baby can be easily delivered simply by rotating it and giving it a small tug. The birth canal is at that point proven since the head managed to pass through. Partial birth also obviates any Caesarian arguments since it is physically impossible to reverse the direction of the baby once the baby has passed through birth canal and is partially born. At that point, giving the baby the final tug to finish the delivery and cutting the cord is clearly the fasted way of "terminating the pregnancy". Stopping to savagely murder the baby before detatching the cord from the mother doesn't speed up the process of saving the mother's life. It delays it.



Second, such allowances for the mother's health seem to be irrelevant to partial birth abortion, unless you hold the absurd position that a few seconds of time and a few inches of position make the difference between a child who also deserves protection of it's life under the same Constitution and a lump of tissue that can be haphazardly discarded. A second later, and the mother cannot savagely murder her child because she is clinically depressed (mental health) and is repulsed by the idea of raising a child. What makes those seconds so special? In fact, to show the absurdity of such a stance, the baby could be fully delivered, and then the foot put back in to make it once again partially unborn, and thus tissue--then it could be killed again. That is a hiddeous loophole that is opened if you allow for the "mother's health" in some ambiguous sence.



Third, partial birth abortion is not a procedure that is available throughout the pregnancy. It is only available at the time of birth. If we don't allow a ban on this very special case, we might as well hand out "Last chance to decide whether or not to be a mother" questionaires complete with a list of suggested health risks you could check off as your legal excuse upon admission to the delivery room.

But surely the fact that it is wrong to kill children is more than a personal feeling or personal bias?  

Compared to the wrongness of killing children, surely even the job description of a judge is ephemeral?  

For wandering into an Erie discussion on a comments thread. You are a braver man than I.

That some states mandate that the rulings of intermediate appellate courts are controlling authority absent an explicit pronouncement one way or another from the final (or supreme) appellate court in that state. Thus, I believe district courts sitting in diversity in most, if not all, of the Eleventh Circuit, are required to follow that rule. Admittedly, that's because there are only a few intermediate appellate courts in those states, and it's state-specific, but there you go.

All we need now is to discuss International Shoe :)

The reality is that according to the laws of the United States, this is not and never has been about killing children.

According to the laws of the United States, for almost one hundred years, slavery was not about the forced labor and ownership of people.

World-Wide Volkswagon. :)

It may be true that your system of ethics tells you that we should treat embryos and fetuses as human beings for all legal purposes, but that is not how American laws have treated them. It is also not what is being proposed by the main pro-life groups.

As for your attempt to equate this to slavery, I don't see it. It appears, if anything, that you want to force women who otherwise don't want to or are in no position to have this baby to become slaves to the state. Some of the most virulently anti-abortion folks would actually reward rapists by forcing their victim to bear the child of the rapist.

Frankly, I see little compassion on the part of much of the pro-life movement in the US. It hasn't been remotely interested in actually setting up an environment in which women, facing a difficult choice, would want to keep an otherwise unexpected or unwanted child. Until women can feel confident that every child born in the United States is really wanted by society, they will continue to make the decision to abort at a far higher level than they would if the right-to-life folks who want to use the law to prohibit abortions had ever shown a willingness to use the law to assure everyone that they care about babies who have already been born.

Once we set up an environment in which all children are clearly welcome by this nation, the problem of abortion will become far less. Until then, we have to live with the fact that our lack of a social safety net causes abortions.

skirts every single objection you raised. If is unnecessary at time of birth to ask if the woman "really wants," "it's your last chance, ma'm," "are you really really sure, because once we give a last tug two seconds from now this tissue will magically become a child..."



It's disgusting that we can't even count on the left to practice an ounce of compassion themselves. Where is the compassion in half delivering a child, "woops we don't want it, lets stab open its head, suck out its brains, and feel good about our deed of removing one more unwanted child, er I mean unfortunate growth of tissue, from the world..."



The jeers of lack of compassion ring very hollow, IMO.

You imply that D&X is a common procedure or that it is carelessly used. Let's see the data.

Tell me how many viable fetuses were aborted last year using D&X. Then, please tell me how many D&X procedures were done last year that would have been illegal under the standards that the Supreme Court has approved.

How many states have constitutional laws regulating D&X today?

I never implied the commonality or that it is carelessly or not carelessly used. I pointed out that partial birth abortion negates every objection you raised, and you have not countered that point, period.

That was one magnificent set of veiled idiocies and ad hominems. Want to call me a racist for opposing abortion? I believe that's the only one you left out.

Briefly, and in order:

(1) That was my point. It's called "parallelism."

(2) I don't care if you see it. The point was, just because the law -- an imperfect creation of imperfect men -- "views" things one way, does not dispose of the question; rather, it begs it. For one hundred years, the laws of the several States and the Nation viewed black men and women as not-people. That the law now does such a thing in a different situation no more answers the ultimate question than did the 3/5 Compromise.

(3) Well, that's absolutely true, insofar as I would force you to be a slave to the state and forbid you from knifing your neighbor to death when he plays Barry Manilow albums too loudly. Otherwise, it's a specious ad hominem.

(4) Yes, because that's what rapists really want: Children. And yes, forbidding abortion due to rape is rewarding rapists. Brilliant. Tell me, how did your seventh iteration of third grade go?

(5) You only see what you look for, friend. Thus, crisis pregnancy centers must pass completely beneath your radar, otherwise you couldn't say something so completely asinine as "Frankly, I see little compassion on the part of much of the pro-life movement in the US. It hasn't been remotely interested in actually setting up an environment in which women, facing a difficult choice, would want to keep an otherwise unexpected or unwanted child." But good luck with your navel-gazing.

(6) Doubtless, the primary reason women have abortions is that they feel society doesn't care enough about children. I'm intrigued by this assertion; please, expand.

(7) Indeed, while you're cogitating on (6), please, please explain how the abortion rate went down even with welfare reform underway.

As the courts have made abundantly clear, based on what they have learned from the medical community, it's inaccurate to assert that D&X is always inhumane or wrong. The most recent court cases have essentially called Congress on their lies about it.

If there is a time that D&X is used but is inappropriate, then it can be made illegal today and has been in many places. If it is the best choice in a very bad situation, the Supreme Court has said that it cannot be made illegal. So, D&X does not negate the objections I raised.

The law was designed to be unconstitutional. They authors of the law wanted it to be overturned.

Yes, the law is imperfect, but the imperfection of this law is not analogous to the imperfection of the laws of slavery. Yes, it is true that many cultures were tolerant of infanticide, but have become less so. Does that mean that all abortions will be next? If, as you imply, we cannot stop until all embryos and fetuses are going to be protected by treating them as human beings, how do you propose we do that?

How is this an ad hominem? Don't you agree that the state has the right to force every woman to keep every pregnancy to term. Well, these are the implications of these arguments. You may argue that they are being drawn too far, but you'll have to show me how. Tell me why there won't be an inquest for every miscarriage. Tell me why a rape victim won't be forced to have a child.

Crisis pregancy counselling centers vary. Some are useful, well run and well motivated. Some are fronts for private placement adoption agencies that profit from these problems. Some fraudulently imply that they will find an abortion provider for a woman, but have no intention of doing so and don't really care what happens to the woman. What happens if the woman is not willing to put the child up for adoption? Is our culture supportive of that choice?

Yes, abortions decreased while Clinton was president. All other things being equal, fewer abortions are good, as far as I am concerned. Don't you agree?

There are a small number of women who are inherently so selfish that they will never choose to have a child just because they are pregnant. Those women are not likely to be deterred from having abortions just because it's a crime. They weren't before. There is a far larger group of people who will choose to have an abortion based on their personal circumstances and their hopes for the future. Those people can be helped by a clear commitment from society -- in the form of a strong social safety net -- that they will not be abandoned or put into dire straits if they choose to have the child. I don't know about other states, but Wisconsin spent far more per person after welfare reform and did it in an effective and empowering way. Why shouldn't women feel better about their prospects with that kind of reform.

Counter assertions are not evidence either. Some of these courts are just now ruling on partial birth abortion, so your claim that courts have made anything abundantly clear on the subject is absurd.



The fact that you imply the medical community resoundly supports partial birth abortion, shows your complete ignorance, just like you showed your ignorance with ad hominems about those who are pro-life.



it's inaccurate to assert that D&X is always inhumane or wrong.



Define your terms. It certainly isn't about the mother's health at the point of delivery, which I already addressed (and you punted). It is then about whether you are going to protect the child's life or not. So the only argument you could present is that it is humane to the baby to kill it in some circumstances. Maybe you also believe in assisted suicide? If so, then at least make your philosophical stance on life and who gets to play God clear.



then it can be made illegal today and has been in many places



Except that in some of those locations activist judges throw out the law prohibiting partial birth abortion.



The law was designed to be unconstitutional. They authors of the law wanted it to be overturned.



I already refuted your claim on this count, and you have yet to respond. Restating the mantra yet again won't make it more true the more you say it.



What I find most disingenuous is your pretentious request for evidence. You state the law makers wanted it overturned. Where is your evidence? You stated most pro-lifers don't propose to treat unborn babies as human beings. Where is your evidence? You propose that pro-lifers are compassionate. Where is your evidence? You stated pro-life wants unwanted babies to be slaves of the state. Where is your evidence? You haven't provided any evidence, just piles of assertions! My case rests on common sense. The position of the baby having part of its body in the woman's vagina doesn't make the baby a lump of tissue that can be killed. Deal with that absurdity of logic please.

If, as you imply, we cannot stop until all embryos and fetuses are going to be protected by treating them as human beings



Wait, I thought we were talking about partial birth abortion. This serves to illustrate that the pro-abortion position doesn't so much see partial birth abortion as something that is great to have available, but rather they see it like the landing at Normandy. Give no ground at all costs.



How is this an ad hominem? ...Well, these are the implications of these arguments.



The implication of trying to protect a baby's life is that they aren't compassionate, that they want a slave to the state? Huh? Of course you wouldn't see the compassion if you see the baby as a lump of tissue, maybe a wart or a growth or something.



Tell me why there won't be an inquest for every miscarriage.



Obfuscation...Tell me why there would be one. If you have ever been through birth or your wife has been through birth, you'd know why this is a ruse. Again, the implied argument is that potential inconvenience is weighted against the benefits of protecting life.



Tell me why a rape victim won't be forced to have a child.



After all, it is the baby's fault, it should die for its crime.... But since you like to throw around the implication that most partial birth abortions are not an abuse of the system, data shows that rapes rarely result in pregnancy. So to remain consistent with yourself, you need to discard this argument too.



Specific to this topic though, partial birth abortion would only apply to those who decided at the last second to kill the product of rape. So this is a ruse as well.



Crisis pregancy counselling centers vary. [blah blah blah]



Of course the data shows that most are in it for the money, not the child.... Try again. If you are going to smear an entire group of people, at least do the research to show that your opinion is warranted.



What happens if the woman is not willing to put the child up for adoption?



Of course they chloroform her, drag her into the back alley clinic, give her a Caesarean, and leave her to wake up in a tub of ice....



There are a small number of women who are inherently so selfish...Those women are not likely to be deterred



By all means, we should write legislation that takes into account those who cannot and will not be deterred from breaking that law. Lets just repeal all stealing and murder laws because they don't deter everyone...



...that they will not be abandoned or put into dire straits if



Hence, all the charities that attempt to counsel women to put the child up for an adoption or to keep it if they want, but not to kill it.

The Supreme Court ruled in Stenberg V. Carhart (99-830) 530 U.S. 914 (2000) that Roe v. Wade, 410 U.S. 113 (1973) and Planned Parenthood of Southeastern Pa. v. Casey, 505 U.S. 833 (1992) on the questions that you want to bring up. You may not like the information I am providing, but I encourage you to read Carhart and then Casey and Roe, if you haven't read it.

The standards are clear. Judges are expected to follow them. Congress and legislators are expected to follow them. If Congress wants to change things, they know what they have to do, yet, there is no constitutional amendment banning abortion, no vote on a proposed amendment is scheduled in Congress. The Court set a standard. Congress refused to follow that standard, but they also refused to do what they need to do to make their law constitutional. They knew that the law they passed would be found unconstitutional.

There is a current law. It is defined by the US Supreme Court. I am pointing out the implications of the decisions that the Court has made. You may not like those implications. I may not like those implications. What I do know is that Congress has done nothing but posture on this issue. The law they passed was almost identical to the law that was found unconstitutional in 2000. Stenberg v Carhart (99-830) 530 U.S. 914 (2000) set standards that were not followed by Congress. The effect, and the apparent intent, was to pass a law that everyone knew would not ever see the light of day. You tell me the motivation.

I'm trying to explain here what the state of the law is today. Embryos and fetuses are not human beings under the law. If you want that to change, fine, fight for it, but remember that Congress isn't doing anything like that and, from all the evidence, won't be. After thirty years of Roe and total inaction in Congress, it is my opinion that we cannot expect to see any changes in the law that will make it harder to have abortions.

You are free to keep arguing for some ideal laws about human life that are not shared by the majority of your countrymen and are unlikely to be changed any time soon. I encourage you to keep arguing for your position, but don't ignore the things that can be done to make abortion a less appealing choice in the meantime.

Legislators are not obliged in the Constitution to write laws that follow dictates and demands of judicial rulings. Judges don't write laws, period. Legislators are only required to write laws that follow the Constitution. As Thomas pointed out, a judiciary who has changed interpretations of how the Constitution applies over time to issues like slavery doesn't establish the credibility to tell the legislative branch how to write laws. That argument of your is patently ridiculous.



Further, I already explained how the issue of partial birth abortion skirts all the previous objections raised by previous judicial rulings, and you punt the argument yet again. At the point of the baby being almost completely out of the mother, it is no longer about the mother's health. If it were, cutting the cord, not butchering the baby, would be the quickest way to terminate the pregnacy at that point.

There is a current law. It is defined by the US Supreme Court.



Surely you see the problem with this statement?



The law they passed was almost identical to the law that was found unconstitutional in 2000.



Except that this law relates to a very narrow issue of abortion, namely partial birth abortion. At the point of delivering a baby, cutting the cord is quicker than butchering it, if the goal is to save the woman's life. So no, I don't see it as mere posturing. It was an attempt to regulate something that has very little popular support and a lot of popular opposition even if the larger abortion issue is mixed. That is an example of trying to find common ground.



You are free to keep arguing for some ideal laws about human life that are not shared by the majority of your countrymen...



IIRC, partial birth abortion is not something the minority opposes. Abortion in general is certainly more divided.



but don't ignore the things that can be done to make abortion a less appealing choice in the meantime.



Who, other than yourself, says I have ignored them, or that others have as well?

By Tradition, the Supreme Court has the last word on what is unconstitutional. Congress and the President have the right to reject proposed laws because they are unconstitutional, but they don't have the right to ignore the Supreme Court's decisions. That is how the rule of law works in America.

Your claims about partial birth abortion do not square with what the Supreme Court found in Carhart. I'm ducking nothing.

I'll not follow up on this. Feel free.

The Supreme Court gets to limit what laws can say, based on what is consititutional. That is how our system of government works. Congress passed this law knowing full well that it would be found unconstitional, since it was based on a Nebraska law that had already been found unconstitutional.

I don't think anything more will be accomplished if I respond again, your argument is with the Supreme Court.

Of course, the Supreme Court has the last say on whether a law is constitutional or not. However, they don't write new laws, as you seemed to imply. Nor does a ruling on a law that has general application automatically apply to another law that has a much more specific application. This is simply a set, subset relationship. I've explained how they don't relate.



Saying Calhart covers that ground, when in fact you haven't shown that it does, is just simple ducking. Call it what you will, but not adressing what I have argued directly or by quoting what you say backs your assertion is ducking in most circles. It's not my job to prove your case.



Lastly, if the judiciary is overstepping its bounds, and if they are twisting the meaning of the Consitution, should the Congress simply go home and forget it altogether? Or should they try to win battles that are winnable because of common ground? Saying that because they are trying to win battles on common ground in the presence of a judiciary that appears to be more activist than they thought, means that the Congress is grandstanding is just, to put it plainly, absurd.

because it does not say it gets to rule on future laws that haven't been written yet. You continue to make the claim about Congress' fore-knowledge, which I have addressed many times, and yet you haven't so much as explained or shown that what you are saying is true in light of what I have said. If you want to continue the discussion, perhaps you can stop asking me to do your research for you.