-Camille Thorns

Sure. In a future case.

Not that my opinion matters, but this is a masterful and thoughtful opinion that gives clear guidance to lower courts, legislators, and prosecutors. It too ably discusses the medical science in a fashion laymen who actually trouble themselves to read it can comprehend — not the mushy garble of Roper and Lawrence. This is the most legitimate 5-4 majority opinion I have read in some while. Very narrow and classy. Perhaps one of Kennedy’s best opinions. I must admit, Ginsburg’s reaction seems a bit much: if this looks like an act of raw politics to you, you might want to get your eyes checked. It certainly gives hope for other big ticket opinions Kennedy will draft in this Term, regardless of the vote count.

If the Court’s conservatives are going to force lousy law like Lopez on us, they could at least play by their own rules.

Both expressed hostility to the constitutional right to abortion before ascending to the bench. Then-Judge Alito was the sole supporter of the spousal notification provision on the Third Circuit panel in Casey. There is no indication that their positions will be any different should the existence of the right itself come squarely before them in the future, particularly with today’s decision chipping away at the pillar of precedent supporting the right.

“I also note that whether the Act constitutes a permissible exercise of Congress’ power under the Commerce Clause is not before the Court. The parties did not raise or brief that issue; it is outside the question presented; and the lower courts did not address it.”

That would be why it wasn’t considered here, though I think I remember hearing it addressed in the oral arguments (I could be wrong about that however)

The majority didn’t even overrule its prior Stenberg decision, which bent over backwards to make up new law to erect obstacles to regulation of even third-trimester partial-birth abortions.

There’s a huge moral difference between aborting a two-week old embryo on the one hand and an eight-month old fetus on the other.

The latter, unlike the former, really is infanticide.

Other civilized countries like France don’t permit nearly as many late-term abortions as the United States. Many countries essentially ban abortion after the first trimester.

Even Roe v. Wade rightly recognized that late-term abortions could be regulated (although the Doe v. Bolton decision issued that same year gutted that concession by allowing even late-term abortions to be performed based on ethereal emotional or familial “health” worries).

It’s hard to take some parts of the dissent seriously.

They say the court’s abortion jurisprudence is not about privacy but equal protection, even though Roe v. Wade said nothing about equal protection and relied upon the court’s earlier privacy jurisprudence.

In support of this claim, they cite not the court’s own holdings, but a law review article by a professor from the ideological fringe.

Perhaps it was hard to argue with a straight face that privacy extends to something close to infanticide.

The idea that regulating a medical procedure violates equal protection merely because the procedure happens to be performed on one gender is hard to sustain.

It seems in tension with the Supreme Court’s decision in Personnel Administrator v. Feeney (1979), which held that the fact that a government regulation affects one gender more than the other doesn’t make it sex discrimination unless it treats similarly-situated men and women differently.

Treating a regulation as sex discrimination because it impacts members of just one sex would have call into question a wide-range of unremarkable laws. Certain kinds of rape require male anatomy to perpetrate, making the prohibitions gender-specific, but that doesn’t mean that such prohibitions are sex discrimination or implicate equal protection.

Some men from certain third-world subcultures illegally import endangered-species extracts as folk cures for male impotence and sexual disfunction. Laws banning such uses to protect endangered species thus have a gender-based impact, but that doesn’t make them sex-discrimination, any more than laws protecting late-term fetuses are sex discrimination merely because they impact women more than men.

The dissenters selective concern with deference to trial court judges’ factual findings is interesting.

The dissent makes a big deal over the fact that the court supposedly did not give deference to the factual findings of the trial courts, which is generally required under Rule 52 of the Federal Rules of Civil Procedure.

But each of the dissenters in the partial-birth abortion case have refused to give any deference to trial court findings of fact in cases with a different ideological coloration.

For example, they gave no deference to the factual finding of the trial judge in the Grutter v. Bollinger race-based-affirmative action case, in which they voted to uphold a racial quota in admissions.

The trial judge in Grutter found that the University of Michigan Law School was using a racial quota, based on unchallenged evidence that enrollments of minorities remained essentially fixed from year to year at a number that was much higher than a race-neutral consideration of minority applicants’ grades and test scores would have produced.

That factual finding was entitled to deference and to not being reversed except for clear error, under Rule 52 of the Federal Rules of Civil Procedure.

The Supreme Court even granted review on the Rule 52 question, which was an obvious ground for affirming the trial court’s decision.

But the justices never even addressed Rule 52.

Each of the dissenters in the partial-birth abortion case voted to reverse the district court’s decision that the University of Michigan Law School was using a racial quota, without even alleging any clear error on the trial court’s part that would justify refusing to defer to its finding as required by Rule 52.

It’s odd that they have changed their tune and suddenly become so concerned with deference to trial courts in this case, when they showed no deference to trial courts in prior cases.

“The Court’s hostility to the right Roe and
Casey secured is not concealed. Throughout, the opinion refers to obstetrician-gynecologists and surgeons who perform abortions not by the titles of their medical specialties, but by the pejorative label “abortion doctor.” A fetus is described as an “unborn child,” and as a “baby…”

I can see why using the term “abortion doctor” would pretty much indicate that you are hostile to Roe. But “unborn child” or “baby”? This really demonstrates the gap between the sides on this issue. As long as one side is taking about fetuses and the other talking about unborn children, there will never be resolution