A narrow order to end abortion case
on May 17, 2007 at 8:00 pm
The Second Circuit Court has given the federal government a follow-up victory in favor of the new federal ban on an abortion procedure, but kept its order narrower in scope than the Justice Department had proposed. The Circuit Court on Wednesday directed that a U.S. District Court dismiss the case as filed, but omitted the government suggestion that the dismissal be ordered “with prejudice” — that is, barring revival of any claim made in the original case.
As detailed in this post , the Justice Department had argued that the Supreme Court’s ruling April 18 in Gonzales v. Carhart (06-380) upholding the federal Partial-Birth Abortion Ban Act swept so broadly that no challenges to the Act remained after that decision. Thus, any claims not specifically addressed by the Supreme Court, the Department suggested, should be “dismissed with prejudice.” The government brief focused particularly on a claim that the Act violated “equal protection” principles — an issue not mentioned or ruled upon by the Court.
The Carhart decision was based upon the Court’s conclusion that the challenge to the Act as written — a so-called “facial challenge” — failed because the 2003 federal ban did not have to include, constitutionally, a health exception that would allow the use of the banned procedure as medically necessary.
The Second Circuit had called for briefs on how to apply the Carhart decision to the pending Circuit Court case of National Abortion Federation v. Gonzales (Circuit docket 04-5201). NAF”s lawyers simply suggested that Carhart “precludes relief on the facial challenge presented to the district court,” and thus the case “should be dismissed.”
That is what the Circuit Court did in its order dated Wednesday. Noting that NAF had “now conceded that Carhart precluides relief on their facial challenge,” the three-judge panel vacated its own earlier ruling against the Act, vacated the District Court ruling against the Act, and sent the case back to the District Court “with instructions to enter judgment for the government pursant to Carhart.” Thus, the order did not go beyond Carhart in any way.
The order was labeled a “summary order,” and it noted that under court rules, “rulings by summary order do not have precedential effect,” though such an order may be cited in future cases so long as it is labeled as a summary action.
(Thanks to Howard Bashman of How Appealing blog for the alert to this order. Howard has provided a link to the order’s text.)
