Friday, August 17, 2007

Evaluating the Court has the transcript to an interesting panel discussion by Legal Times reporter Tony Mauro evaluating the past Supreme Court term.

The discussions can get arcane, particularly when it comes to business or criminal defense issues, but the entire discussion is insightful.

Ever Gartner, the attorney who argued the Partial Birth Abortion Ban Act was unconstitutional, seemed the most bitter and angry. And who can blame her? She lost a crucial vote that pro-abortionists feel entitled to. And how many times can she call partial birth abortion "so-called" in a single statement? Let's see:

The Court decided two of the three challenges that had been filed challenging a statute that Congress passed in 2003, the federal ban on so-called partial-birth abortion. All three of the cases that were filed were successful in all of the six lower courts in having the law enjoined and found unconstitutional. This was in large part because the statute that Congress passed is virtually identical to a statute that the Court had struck down only seven years ago in 2000 in a case called Stenberg v. Carhart.

In that case, which at this point we are calling Carhart I, the Court, by a 5-4 vote with Justice O'Connor at that time in the majority, found the Nebraska ban on so-called partial-birth abortion unconstitutional for two reasons. One, because the statute lacked a health exception [for the mother] and two, because the law was found to be so broad as to ban virtually any second-trimester, pre-viability abortion method.

The federal law that Congress passed in 2003 suffered from the identical constitutional flaws that the Court found in the Nebraska law, and, in fact, Congress passed the law very pointedly to create a vehicle for the Court to reconsider its Carhart I decision. So the abortion case, in addition to all the other ways that it presented very interesting constitutional issues for the new Roberts Court, it presented really a kind of test case to see how this Court was going to treat its own recent precedent ...

The Court, as we know, came out the other way, saying, "Yes, Congress can ban so-called partial-birth abortions, even without a health exception." So this shows us where the Court .... that at least in this particular context, the Court completely disregarded its precedent.

I count three in just that simple statement, which doesn't include the rest of Gartner's snit. My point, btw, is that Gartner could have referred to partial-birth abortion as "this procedure" or "the act." By constantly using the "so-called" flag, she is trying to cast doubt as to whether partial birth abortion is, in fact, partial birth abortion.

But Gartner goes on in her ideological way.
For the first time, the Court identifies two interests it has never used before to justify a restriction on a safe pre-viability abortion method. It says the ban can be justified because of the Court's moral and ethical concerns about the use of this procedure.

Unless Ms. Gartner knows something the rest of us don't, partial birth abortion isn't performed on babies pre-viability. It's performed on babies that are developed enough to survive birth (even if they were to die later). That's hardly pre-viability.

The rest of the transcript contains more interesting--and less emotionally charged--discussions about the tip of the Court to the right, who is in charge (Kennedy, by far), and where the Court may go from here. Read the whole thing to find out more.