The Lincoln Plawg - the blog with footnotes

Politics and law from a British perspective (hence Politics LAW BloG): ''People who like this sort of thing...'' as the Great Man said

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Wednesday, June 02, 2004

Partial birth abortion act struck down: a good day's work

Hats off to Phyllis J Hamilton, US District Judge for the Northern District of California!

In PPFA v Ashcroft, what looks like a sound foundation for an eventual Supreme Court win - and a permanent injunction [1].

These trials are judicial grunt work - a three week bench trial, not to mention reams of testimony from the Stenberg trial and Congressional investigations to go through. But any skimping at this stage is liable to mean trouble when the muckamucks get to work on the case.

Hamilton's opinion is notable, straight off the bat, for two things:
  1. She is ruthless in uncovering the lack of professional competence to testify of witnesses before her, and in Congress, giving evidence in favour of outlawing 'partial birth abortions';

  2. She dissects the Congressional findings in the Act and finds them unworthy of deference, or, even if deferred to, not controlling of the issue.

In fact, it seems that Hamilton herself asked for submissions on this point: the screeds of findings in S3 were evidently intended to close off routes to constitutional challenges. Hamilton's message: Not so fast, buster!

I'm no expert - that surely goes without saying! - and I've just had a chance to skim the 117 page opinion; but it seems the right stuff to me.

  1. The paperwork, including the Hamilton's final opinion, is here.

    Several earlier pieces here on partial birth abortion - April 26 piece has links to the ongoing litigation, and discusses the Stenberg case, amongst other things.


The bench trial in the Nebraska case has just ended - (AP June 2) - with Rep Steve King (R-IA) mouthing off about activist judges.

The District Judge in the case, Richard Kopf,
said he did not think that "one unelected judge, from the hinterlands to boot, ought to veto what Congress does just because he or she doesn't like it," Kopf said. "I've never seen a judge like that."

From the hinterlands - is that the same as flyover country?

The judge in the third trial, in New York, is hearing closing arguments on June 22, apparently.

The San Jose Mercury-News is cock-a-hoop. It says
The ruling will now likely head to the U.S. Supreme Court...

Is that right?

Rule 10 of the Supreme Court Rules specifies three classes of case which
although neither controlling nor fully measuring the Court's discretion, indicate the character of the reasons the Court considers
as tending to support the grant of certiorari.

If all three cases are decided by the Circuit Courts along the lines of the District Court in the California case - which is essentially that the 2000 Supreme Court decision in Stenberg is dispositive of the matters at issue - it's hard to see them fall into any of the three classes specified in Rule 10.

Whether pro- or anti-abortionists would want the Supremes to take another pass at the issue would no doubt depend in part on whether, by that stage, the composition of the Court had changed...


Take a moment to recognise the contribution of those 17 Dem senators without which this litigation would not have been possible: the senators who voted for S3 on passage - which zipped through 64-34.

Of course, the bill's managers could have passed it without the Dems, if they'd been prepared to sit the vote out. Or even released 14 of those Dems to vote against the bill - and still the vote would have been safe.

Fact is, those Dems were voting for the bill - irony intended - from choice. And - needless to say - Mr Ethanol, Senate Minority Leader Tom Daschle, was voting with the majority.

What about fellow South Dakotan and Dem of the Hour, Stephanie Herseth - gorgeous and victorious! The party's darling was, in 2002, against late-term PBAs except to save the mother's life or health. So far as I can tell - this is the only mentioned of the subject from the campaign just ended - her view is the same today.

Which makes one wonder about her views on other bills designed by the anti-abortion lobby designed to restrict the effective choice of women: on November 21 2003, I mentioned a number of lines of attack, including bills to ban the abortion pill RU-486 and a sort of abortion Mann Act to prevent under-age girls being taken for abortions across state lines (HR 1755 and S 851).

To judge by the House vote on the conference report of S 3 - which passed by 281-142, with 63 Dems voting in favour - the anti-abortionists don't need Herseth's vote. (Though DeLay and friends may offer her bear-traps on this and other issues.)

But if she returns next January to vote in Speaker Pelosi, things could presumably get more interesting: committee chairmen disinclined to report out such bills, motions to get bills to the floor regardless, that sort of malarkey.

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