a bird and a bottle

Oh, Justice Kennedy, How You Have Failed Us

update 2: Today’s decision brings to bear the real – and devastating – impacts of Justice O’Connor’s retirement.

update: At least Ginsburg’s got some brains:

Ginsburg, in a lengthy statement, said “the Court’s opinion tolerates, indeed applauds, federal intervention to ban nationwide a procedure found necessary and proper in certain cases by the American College of Obstetricians and Gynecologists. For the first time since Roe, the Court blesses a prohibition with no exception protecting a woman’s health.” She said the federal ban “and the Court’s defense of it cannot be understood as anything other than an effort to chip away at a right declared again and again by this Court — and with increasing comprehension of its centrality to women;s lives. A decision of the character the Court makes today should not have staying power.”


The decision is in. The Supreme Court today upheld the late-term abortion ban Congress passed after the Court struck down a similar ban a few years ago. Congress, if you remember, passed the bill after making findings that a late term (aka partial birth) abortion was never medically necessary. Which is BS. Of course. Anyone with half a brain knows that.

But apparently not Justice Kennedy, who provided the crucial fifth vote to uphold the ban and who wrote the friggin’ majority opinion. Given that he’s now the swing vote on the court (since O’Connor stepped down), this does not bode well for women’s rights under the Roberts SCOTUS.

Kennedy wrote in the opinion that the opponents of the act ”have not demonstrated that the Act would be unconstitutional in a large fraction of relevant cases.” Which makes little sense to me at first blush. Just because in the majority of cases a law is not unconstitutional as applied means that it does violate the rights of some. Backwards logic if I ever saw it — a failed attempt to justify an obviously political decision that is bound to do damage to the Constitution.


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Also, I should note that this totally betrays Roberts’ whole “judicial restraint” ideology. His whole schtick during his hearings was that he believes that judges should let precedent stand and respect prior decisions of the Court. Yet as soon as he had the opportunity to reverse a less than ten-year-old decision here (the earlier late term abortion ban case, Stenberg v. Carhart, was decided in 2000), he did.

Comment by bean

Knew it was coming soon, and entirely expected, but good to see Roberts doesn’t understand the principle of stare decisis at all. Cannot wait to see the actual opinion and make myself feel ill.

Comment by missygp29

my thoughts exactly (see comment – I think we posted at the same time!).

Comment by bean

speaking of trying to read the brief, I made it through the first paragraph, and had to put it down b/c I could feel my blood pressure rise. I am girding myself up to read the next paragraph now…
by the way, in the Ferguson case, while Kennedy concurred that it presented a 4th amend. violation, he kept saying (perhaps not explicitly) that a fetus has rights… so I shouldn’t be surprised. but i am. argh!

Comment by tiloma

>>”Kennedy wrote in the opinion that the opponents of the act ”have not demonstrated that the Act would be unconstitutional in a large fraction of relevant cases.””

This makes no sense, of course, because the act would affect all women whose doctors have deemed the procedure necessary for her health. How can “all” not be a large fraction of the ‘relevant’ cases?

Comment by Rebecca

Oh well. Eighteen weeks down, twenty-two more to go…

Comment by Alon Levy

“do damage to the Constitution” ??

Good grief, the right to an abortion was a dreamed up right in the first place. Congress and the state legislatures are where this question belongs.

Comment by Barry Duncan

Good grief, Barry. It wasn’t “dreamed up” — it was found in the language of the Constitutional document, as understood by people in the 20th century as opposed to its drafters in the 18th. If you’re an originalist, then fine, but if you’re a real originalist, you should also then think that we should stick with the status quo at the time of the Constitution’s ratification — slavery, lack of women’s suffrage, and all. At least I’m consistent in my approach to interpreting the constitution, even if I was histrionic in my language.

Comment by bean

Good grief, the right to an abortion was a dreamed up right in the first place.

So was freedom from slavery.

Comment by Alon Levy

Well then you won’t have any problem when some fraction of nine people in the 21st Century find differently than they did in the 20th century.

Comment by Barry Duncan

I think they are constitutionally entitled to decide cases. I just think they decided this one wrong.

Comment by bean

I seem to recall that the Supreme Court (to its everlasting discredit) upheld the notion of slavery not too long before a pretty unpleasant time in the history of these United States.

Comment by Barry Duncan

In Dred Scott? Yes, yes it did. It also upheld “separate but equal” in the late 1800s. Is your point that they make bad decisions or they make mistakes? Either way, I am on board with you there.

Comment by bean

I really don’t think this decision was that big of a deal, but you should have known the first time you saw a sonogram of a fetus that your side was going on defense. Incidentally, I wouldn’t have had any problem with the Supreme Court deciding thirty years ago how far along a fertilized egg had to go before it became something that had constitutional rights. It wouldn’t have taken an emanation from the penumbra to decide that.

Comment by Barry Duncan

Barry – the idea that this decision doesn’t mean much is one of the most fundamental misunderstandings about it. This ruling erases a line the Court drew in 1973 — the one that said that abortion restrictions must have an exception for the women’s health if they are to be upheld. Today’s decision says that politics are more important than women’s health.

I think the Times put it pretty well in tomorrow’s editorial (just posted):

It severely eroded the constitutional respect and protection accorded to women and the personal decisions they make about pregnancy and childbirth. The justices went so far as to eviscerate the crucial requirement, which dates to the 1973 ruling in Roe v. Wade, that all abortion regulations must have an exception to protect a woman’s health.

Comment by bean

I think what this decision means mostly is that partial birth abortion is a really offensive procedure. Sonograms and other ways of picturing what is in the womb are what should really worry you. Roe v. Wade was a political decision. It was legislating from the bench. However, deciding when a future person is covered by the Constitution would be a proper Supreme Court endeavor.

Comment by Barry Duncan

you can’t kill babies no more!

If that decision means you don’t think any further restrictions on abortion are necessary, then I’m happy.

Comment by Alon Levy

Now, now Alon–remember not to feed the forced-birther trolls!*wink*

Oh, and BTW, how can a procedure that doesn’t exist be offensive? According the people who should know, the American College of Obstetrics and Gynecology, there is no procedure known as “partial birth” or “late term abortion.” The procedure is dilation and extraction. The former language is just scare-language dreamed up by misogynist anti-choicers.

Comment by Nowirehangersever

Unless trolls here work any differently from on Pandagon and Majikthise – which together span almost the full gamut of comment thread quality – those who just say “You’re all baby killers” don’t come back. The really bad ones make some sort of argument, while lowering the overall level of discourse both by peppering their comments with invective and making stupid points. The Irritable Architect on Lindsay’s gun control thread is the problematic kind of troll.

On a more substantial note, you’re right about D&X versus partial birth. On the other hand, it makes a lot of sense to talk about late-term abortion, regardless of procedure. If fetal consciousness begins at week 22, then it’s perfectly acceptable to ban abortion past week 22, with a health and life exception whose strength might depend on the exact stage of consciousness. The D&X ban you can possibly justify by appealing to the fact that it involves partially delivering the fetus, but the proponents of the ban make that partial delivery look a lot more similar to a real birth than it actually is.

Comment by Alon Levy

Thanks Alon and Nowirehangersever. I have marked that troll as spam, which he/she was. ugh. Trolls.

Comment by bean

This decision really saddens me. Its too bad.

Comment by Sherpa

According to Justice Anthony Kennedy’s majority report, opponents of the ban “have not demonstrated that the Act would be unconstitutional in a large fraction of relevant cases.” What he means by “relevant cases” is not clear; does this include all the hundreds of thousands of abortions in the U.S. every year, or the thousand or so abortions past the twenty-fourth week? But even if, as Kennedy asserts, the ban were not unconstitutional in a “large fraction” of cases, then it follows that he recognizes the ban must be unconstitutional in the remaining “small fraction” of cases, or else Kennedy would surely have phrased it as “not unconstitutional in all cases.”

What I want to know is, how does a law, being unconstitutional in even one case, get Supreme Court approval?

How is this decision not in conflict with the precedent of Roe vs. Wade, which permits abortions in order to protect the health of the mother? Because the anti-abortion forces found someone, somewhere, to claim that alternatives exist which are just as safe as Intact D&E, and “The Courts precedents instruct that the Act can survive facial attack when this medical uncertainty exists.” In fact, one of these alternatives, explicitly spelled out in the Court’s decision, is “if Intact D&E is truly necessary in some circumstances, a prior injection to kill the fetus allows a doctor to perform the procedure, given that the Act’s prohibition only applies to the delivery of ‘a living fetus.’ ” (This, in the decision that right-wingers are hailing as a triumph for “the sanctity of life.”)

Further, in the decision he writes “These facial attacks (i.e. that the Act has no exception for the woman’s health) should not have been entertained in the first place. In these circumstances the proper means to consider exceptions is by as-applied challenge… This is the proper manner to protect the woman’s health if it can be shown that in discrete and well-defined instances a condition has or is likely to occur in which the procedure prohibited by the Act must be used…” In other words, at the moment when a doctor is confronted with what he professionally judges as the necessity of performing an Intact D&E on a specific patient for legitimate medical reasons, at that point he may petition the Supreme Court for a new decision. Of course by the time the Supreme Court slowly get around to ponderously considering the case, the patient will be long dead. But at least the all-important legal proprieties will have been satisfied.

Comment by W. Kiernan

The system worked as I see it. Why do you feel that removing a fetus from a womans body up to the 8th month of her pregnancy is sometype of right? Is a person that attacks a woman while pregnant and the baby is killed a murderer?

Comment by loanhelper

Great points, W. Kiernan. In answer to your question about the constitutionality question: the Court at times does this; it says that a law is not facially unconstitutional but that its application maybe unconstitutional. That’s what Kennedy was saying here. Of course, it’s total BS because, as you point out, it would require a woman or a doctor, in the middle of a pregnancy, usually with a deformed fetus, to petition a federal court for review. Before performing the procedure. While the fetus continues to grow.

I also think your point questioning how this protects “life” is a good one. The procedure that is not covered by the act (the one with the injection) does not seem any more respectful of life — and particularly less respectful of women’s lives. Because in that situation, a woman must labor and birth a dead fetus. Often one that she really wanted and is distraught at having to abort. Giving her the opportunity to avoid the trauma if the ultimate outcome is the same is the only way to respect her emotions, her life. But women are missing from almost all aspects of this decision.

Comment by bean

Well, it appears that everyone agrees that the Supreme Court makes stupid decisions.

To be quite honest, even though I am a staunch pro-lifer, I don’t think this is the domain of the courts at all, unless it is in determining, as has been said, when constitutional right begins as a person. Roe v. Wade never should have happened, and neither should any of the other decisions. Allow the elected representatives to make the vote. That is what this country is, anyways, right?

Comment by thelonedrifter

thelonedrifter – though i disagree with your statement about Roe, I just want to say thank you for engaging in a real conversation about this. I have deleted too many comments from anti-choicers today because they were non-comments (“you dumbasses” or “I love when liberals cry”). Your candor and respect is appreciated.

Comment by bean

We are only women after all. That’s what it really comes down to. In a country that boasts how many rights women have, it’s really just comical.

Comment by goldenferi

Goldenfrei you have hit the nail on the head. This is only marginally about fetuses. At root, it’s about enshrining outdated notions of women’s roles, women’s morality, and women’s lives.

Comment by bean

It is perfectly fitting of this court to make this big brother decision. It reflects exactly the hypocracy of the people who put the judges in place. But is is a sad day.

Comment by vivian

I don’t think this is the domain of the courts at all, unless it is in determining, as has been said, when constitutional right begins as a person.

The point of Roe vs. Wade is that since there’s a gray area late in the pregnancy, it makes sense to have a system in which more restrictions are permissible later in the pregnancy – hence the trimester system.

For what it’s worth, if Congress got a carte blanche to determine US abortion law, neither Right to Life nor NARAL would be satisfied with the resulting system.

Comment by Alon Levy

Alon Levy, that is true that if Congress made the decisions, no one would be satisfied. However, Congress does accomplish some things, whether you agree with the decision or not. Remember that this ruling was over a law passed by Congress in the first place.

bean, unfortunately, there are people on the left, right, and “in between” that love to resort to gloating or name-calling or whatever. While I don’t advocate “can’t we just all get along,” and I have no problems with calling public figures out in somewhat cruel wording, I don’t think shouting at people you are arguing with accomplishes anything. Thanks for being reasonable, because I’ve had my share of irrational liberals (and others) on my own blog as well, and it gets annoying.

goldenfrei, I would disagree with your statement about women’s rights. Consider the fact that we have a woman running for president who has only served four (I think it’s four?) years a senator, and eight years as a first lady. There’s not any executive experience whatsoever, yet she has the best chance of winning of any person who has not served as a governor in a long time. It would be interesting to see poll numbers on how many people will vote for Hillary simply because she is a woman (though many who would do that would vote for her on issues, anyways).

Also, a fundamental misunderstanding that I think a lot of people have in this day and age is that not having an abortion puts a mother’s life at risk. I realize that was not your point, but rarely anymore are mother’s lives at risk because of giving birth. Also, partial birth abortion (late-term, whatever you want to call it) can be just as risky as other births.

Comment by thelonedrifter

Any critic of the decision from the Court should also remember that it was the Court that gave Rove v wade its power all these years. So, the messsage here is that as a society we cannot keep running to the Court to settle our disputes. Also, we cannot assume that what the court decides today will be undisputed law of the land for all generations.

Comment by loanhelper

Not too many lose their lives from the process of giving birth,but it happens, but many lose their lives if they tell someone they are pregnant, if they hide the pregnancy out of fear and so and and so on. Then we have the case of the rape victim, not only having to deal with being raped, but having to carry a pregnancy that reminds them every day of it. Then when they are done they get to give up part of themselves, however painful, and wonder about it for years to come. Yes Hilary has made great achievements and I fully intend to vote for her, NOT because she is a woman but because of her stand on issues. It’s sad, however, to think that because we have Hilarys and Oprahs in this world that all women have made great strides.

Comment by goldenferi

I am not denying many women be made to feel shame for being pregnant, but how about some stats on your assumption

Comment by loanhelper

Any critic of the decision from the Court should also remember that it was the Court that gave Rove v wade its power all these years.

That doesn’t make any sense. A critic who says the court shouldn’t have gotten involved might want to be reminded of that, but a critic who, like me, believes that the Court had a right to be involved but should have decided the case differently doesn’t need a nudge about Roe. One can criticize the Court’s holding while acknowledging the Court’s power. It’s called nuance.

Comment by bean

I am not critical of this decision. My point is that for so long as a prolifer I have had to hear that Roe v wade should be left alone because the Court has ruled. I think you and I agree that the Court should never have made a decision in the first place. Dont you think that on this particular issue there has been hypocrisy?

Will pro-lifers be so adamant about not ever questioning this ruling as has been the case with the pro-choice?

Comment by loanhelper

Ah, but that’s where you’re wrong loanhelper. I think the Court was right to step in and hand down Roe. And I’m sure some people are hypocritical. But I am consistent – the Court has the power to protect constitutional rights. It did that in Roe. It betrayed that responsibility in Gonzales.

Comment by bean

You lost me on Gonzales, but anyway. Constitutional Rights? Are we saying that once a court decicion has been made that it automatically becomes a right?

Comment by loanhelper

In deciding Roe, the Court recognized a fundamental right. No automatic anything there.

Comment by bean

I do appreciate the back and forth, Bean. I hope to talk again sometime. Its nice to have these differences without the ugliness.

Comment by loanhelper

This should never have been a court decision in the first place. But I’m done arguing this. It’s an argument for the sake of argument.

Comment by goldenferi

It would be interesting to see poll numbers on how many people will vote for Hillary simply because she is a woman (though many who would do that would vote for her on issues, anyways).

Well, the polls almost uniformly have her losing to Giuliani. In fact, last time I checked, Real Clear Politics’ aggregation of polls had her losing to Giuliani by the largest average margin of the three Democrats.

Comment by Alon Levy

I hadn’t heard that, but that’s not what I asked.

Comment by thelonedrifter

My guess is that as many women as Hillary would pick up simply because she is a woman, she’ll lose because she is a woman. So it’ll all even out in the end.

Comment by bean

I would agree, bean. I don’t really think it matters all that much any more. There is racism and sexism still today, no doubt. But it is not the rule any longer. It is the exception, or at the very least, been evened out by those determined to do everything to stop racism and sexism, sometimes to the point of reversing it.

but I digress…

rabbit trails

Comment by thelonedrifter

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