Virginia Partial-Birth Law Probably Headed to Supreme Court

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Perhaps future-Justice Sotomayor's judicial inclinations on abortion will be tested relatively soon once she assumes Justice Souter's now-vacated (as of today) seat on the Supreme Court (pending her all-but-assured confirmation by the heavily-Democratic Senate). The 4th Circuit decided a case last week that considers the constitutionality of a Virginia abortion ban that in almost every respect is just like the federal law that the Supreme Court narrowly upheld in an opinion written by abortion swing-voter Justice Anthony Kennedy.

The federal law and the Virginia law differ in one respect. The federal law bans deliberate partial-births (defined by delivery up to a certain biological point) in order to kill the fetus. That procedure is outlawed as a method of abortion. The Virgina law bans one further thing. If a doctor is carrying out an abortion by another method, and the fetus happens to get past that point of delivery defined by the law as a partial-birth, it is a crime to kill it via any method. In other words, once the fetus reaches the point defined by the federal law as a partial-birth (whereby it's a crime to deliver the fetus to that point in order to kill it), it counts in Virginia as a crime of a similar level if the doctor goes ahead and kills the fetus whether the intention was to abort it that way or another way earlier in the process.

In other words, the difference between these two laws is that one does not criminalize deliberate attempts to kill the fetus after it reaches the relevant partial-birth stage as long as the doctor had planned to kill the fetus earlier but failed to do so. The other does criminalize that. Which law is more consistent? Surely the Virgina one. It criminalizes any killing past that point, whether there was an intention of killing beforehand or not. Compare the laws against disposing of an infant born from a failed abortion. The U.S. Senate unanimously supported such a law. It doesn't matter if the doctor intended to abort the fetus. If it got to the point where it would normally be illegal to kill it, the fact that it was born as a result of a failed abortion doesn't make it legal to kill it. This just extends the same sort of reasoning to the partial-birth abortion ban the federal government passed that the Supreme Court has declared constitutional. So it seems as if it's actually the logical implication of the federal law, even if the federal law didn't go this far. It basically relies on the principle, found in Judith Jarvis Thomson's famous 1972 paper defending abortion, that a woman doesn't have a right to the death of the fetus just because she has a right to be rid of it from her body.

The 4th Circuit vote was narrowly-divided 6-5 along lines that happen to correspond with the party of the presidents who appointed them. Judges don't often follow a narrow ideology reflecting exactly that of the president who nominated them, but in this case it did work out that way. One judge was appointed by President Clinton as a recess appointment and renominated by President George W. Bush as a courtesy (as presidents do from time to time for previous presidents of another party), but he really counts as a Clinton appointment, since Clinton appointed him initially. Those appointed by Presidents Reagan, Bush, and Bush signed the opinion that upheld the law. Those appointed by President Clinton signed the dissent (none remain from Carter and Obama's one nominee to that court hasn't been confirmed yet).

In effect, the Democratic appointees on the 4th Circuit Court of Appeals have endorsed the view that a woman not only has a right to be rid of the fetus but also has a right to its death if being rid of it most of the way doesn't kill it. Otherwise they have nothing to complain about if they're really following Supreme Court precedent (which does bind them). The dissent here strikes me as a pretty obvious case of ideology trumping the law, even granting all Supreme Court precedent as the law. I really hope that if the Supreme Court hears this case it will affirm the 4th Circuit judgment by a 6-3 margin. It will likely not get more than that since three justices remain who will likely seek to continue their opposition to laws like this, but I suppose it's barely possible even if extremely unlikely that Justices Stevens or Breyer will defer to precedent they didn't original support. But no one has any clue about Judge Sotomayor's views on this sort of issue. She could be well to the left of anyone on the Supreme Court for all I know, but it's certainly possible that she's even to the right of Justice Kennedy for all that she's written about the issue (which is basically nothing besides issues relating to the free speech of abortion protesters).

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