Government sees new need for abortion ruling
The Bush Administration urged the Supreme Court on Tuesday to move ahead with a final ruling on the constitutionality of the controversial federal ban on “partial-birth abortions,” arguing that there would be no value in sending a pending case back to a lower court for another look. It cautioned against any action by the Justices that would “unduly postpone the ultimate resolution of the extraordinarily important question” of the constitutionality of the ban enacted in 2003. The new filing can be found here.
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The Court is scheduled to consider the case of Gonzales v. Carhart (05-380) at its private Conference on Friday, according to the Court’s electronic docket. The Court had examined that case at a Conference Jan. 20, but took no action on it at that time. That may have been based on a desire to have the case come up after the new Justice, Samuel A. Alito, Jr., had joined the Court.
Since the government filed its appeal in the Carhart case, challenging an Eighth Circuit Court decision nullifying the so-called “Partial-Birth Abortion Ban Act of 2003,” there have been three significant new developments. It was those developments that prompted the Justice Department to file a new brief Tuesday. The first was the Court’s Jan. 18 ruling sending a New Hampshire abortion case back to a lower court to consider a possible narrower ruling against that state’s law requiring parental notice of a teenager’s abortion. In that ruling (Ayotte v. Planned Parenthood), the Court seemed to indicate that it was changing course against pre-enforcement, total nullification of new abortion restrictions, in favor of more focused remedies for invalid laws.
In the Justice Department’s new filing, it argued that the New Hampshire decision “does not shed any light on the threshold question presented in this case concerning the constitutionality” of the partial-birth abortion ban. The Court should not send the Carhart case back to the Eighth Circuit in light of the Jan. 18 decision, the Department contended, because the question of remedy would not even arise regarding the federal ban unless it were first struck down — wholly or partly — as unconstitutional.
Other new developments affecting the federal ban, of course, were the rulings by two more federal appeals courts — the 2d and the 9th Circuit Courts — on Jan. 31, striking down the partial-birth abortion ban in decisions somewhat different in scope and rationale.
Those new decisions, the Department argued Tuesday, “confirm that the Court” should agree now to hear the Carhart case, to resolve definitively the constitutionality of the federal ban. That case, it said, “is an attractive vehicle for consideration of the Act’s constitutionality.” Granting review of it, the Department added, would allow the Court to consider and decide “all of the principal issues concerning” constitutionality.
Any chance you can post the SG’s latest submission?
Comment by Lionel Hutz — February 14, 2006 @ 9:50 pm
For reasons explained here, I remain deeply sceptical about the Constitutionality of the Federal ban, not because of a lack of adequate exceptions (as the ninth circuit found, and as this brief seems mainly premised on), but on the basis that the act is ultra vires, and this brief does nothing to convince me otherwise, since it continues to proceed on the assumption that Congress had the authority to pass the statute in the first place, which is precisely what I doubt. Our Hero has said:
I agree – and if the Court grants cert, we will find out if Justice Scalia has changed his mind.
Comment by Simon — February 15, 2006 @ 8:52 am
Simon — Ideas as to Federal jurisdiction over abortions: A partial birth abortion ban could apply to doctors who are employees of the Federal government; to abortions in D.C. , and on Federal property; to abortions done in facilities that accept Federal money; and further, Congress could require a State to enact a partial birth abortion ban in order to qualify for Federal money.
Comment by The NJ Annuitant — February 15, 2006 @ 9:49 am
NJ Annuitant,
I don’t disagree with any particuly point of that (indeed, I made the same point about attaching strings to federal money in the blog post I linked to previously), but the problem is that FPBAA, 117 Stat. 1201, speaks to none of these things. It is, or attempts to be, an outright national ban, which is precisely the basis on which it is being litigated. Now, if the court wants to uphold it as it applies within Federal jurisdiction, per your list of jurisdictions, I don’t have a problem with that. But the reality is that even if Congress wants to prohibit certain forms of abortion, this law exceeds its powers to do so, and should be struck down. Congress can’t simply declare a compelling interest in a subject and legislate accordingly; Congress “is entirely a creature of the Constitution. Its power and authority have no other source. It can only act in accordance with all the limitations imposed by the Constitution.”
Comment by Simon — February 15, 2006 @ 10:44 am
Simon — I was not arguing with your point, but was trying to find valid Federal jurisdiction for a new and improved statute. I think it always comes as a shock to members of both houses of Congress that they do not have jurisdiction over absolutely everything!
Comment by The NJ Annuitant — February 15, 2006 @ 12:19 pm
I can’t recall ever seeing another filing by the SG’s office that bore only the SG’s name. What might be the significance of that choice?
TG responds: actually the SG alone signs reply briefs and supplemental briefs at various stages of cases.
Comment by Moappeals — February 16, 2006 @ 12:59 pm