Enacting legislation already ruled unconstitutional

Sorry if I’m coming a little late to any partial-birth debates.

In the paper this morning I read that opponents to the recent federal partial-birth abortion ban contend that it is “identical to a Nebraska statute … that the U.S. Supreme Court struck down in 2000.”

Can anyone explain to me if the legislation is identical, or if not, how it differs sufficiently so as to pass constitutional challenges?

If the new law is identical, what would be the motivation for legislators to duplicate a law that was aready struck down?

It’s a variety of civil disobedience… They know they’ll lose, but, since they believe in this so strongly, they go through the motions anyway…

And, down the road, they fancy a new Supreme Court, and perhaps enough state legislatures, and, in due course, a comprehensive ban on abortion.

They often compare it to the abolition of slavery: it took a long, long time.


Votes and Finances.

It’s a safe way of garnering campaign support and money from abortion groups without actually galvanizing the women voters (the majority of whom are pro-choice) in your area to muster support against you. You get free labor who actually give you money for the privilege of going out and campaigning for you.

All of which goes away if you ever actually get abortion overturned. After all… their issue will have just dissapeared. there’s nothing to be proactive about… and that means free labor and money dissapears.

So long as “the fight” exists, so does the labor and money. So as a politicians it’s not actually in your interest to vote to pass a law that would pass SC muster. It IS in your political interest to pass one that won’t. Same thing as the Communications Decency Act of 1996.



What I read was not so much that legislation was identical, but that it contained the same legal flaw as the earlier law-- ie, no excemption clause for allowing the procudure when the life of the mother is at risk.

Not sure if that clears anyting up, as you could ask the same question about passing a law with the same “flaw” in it.

One reason for introducing legislation that’s been ruled unconstitutional is that the courts may reverse themselves. Social attitudes change, and when they do they often change the interpretation of the law. Look at the recent sodomy case, where the Supremes effectively overturned a ruling they’d made relatively recently (by legal time scales…)

Getting Roe vs. Wade overturned is the holy grail of the anti-abortionists (which doesn’t seem like an impossible goal to me…)

Straneg thing is - it does contain that exemption. I’ve seen the except in the bill itself, but I’m afraid I’m not sure where I can see an e-copy. And the developer of that “procedure” testified before Congress not too long ago that there were no medical reasons he knew of that might require a partial-birth abortion; or at least he’d never seen or heard of any in practice

It kind of includes an exemption. It allows the procedure only when it is necessary to save the life of the mother. Not her health, not her well-being: just her life. So if the kid had massive congenital defects, and a partial birth abortion was necessary to allow her to have more children, she’s SOL.

The first finding in the bill sets a tone for the rest of it (bolding mine):

You can find the rest of the bill here.

  1. The bolded declaration from the previous post is a Congressional attempt to substitute the opinion of the majority of Congress (which in legalese is a “finding”) for medical fact. The medical profession is not conclusive nor in agreement about whether or not there would ever be a circumstance where this procedure is “necessary”. I believe only an obstetrician-doper would be qualified to make declarative statements on this. The rest of us are only spouting our ininformed opinion, which we all know is no substitute for facts. :wink:

  2. One would suspect, Metacom that amniocentisis or sonograms would have revealed any massive congenital problems well before the third trimester. But you are absolutely correct - there are insufficient protections written into the bill for the mother, which is the heart of the issue of “choice”. Too often pro-lifers attempt to demagogue this issue by saying, “if you’re not pro-life, then you must be pro-death (abortion), you slobbering baby-killer.” WRONG! Pro-choice means pro-choice. I myself can’t conceive of a circumstance where I would choose abortion, but that doesn’t mean I would deny others the right to control their own choices. The lack of a health exception for the mother is tantamount to denying them any kind of “choice” in the matter - it’s all up to the State to decide for them.

  3. Repeatedly introducing unconstitutional legislation is the same tactic employed by the Bush administration in the public diplomacy sphere. If you shout something loudly enough and often enough, eventually you overwhelm the opposition who gets just plain tired of fighting back. It is part of a systematic attempt by legislative bodies to undermine the authority of an independent judiciary, in essence by repeatedly barraging the judiciary with challenges to it’s authority until the judiciary changes it’s mind. The same thing just happened in Florida with the Schiavo case and a host of “policy riders” passed by Congress within several recent appropriations bills. While I empathize sincerely with people who view this particular obstetric technique as grotesque, I am not prepared to undermine the rights of a woman or attack the fundaments of the tripartite checks-and-balances system of government as a result.

They’re not word-for-word identical, although many phrases are identical. Most importantly, they both include the same, unconstitutionally narrow exception allowing “partial birth abortions” only if they are “necessary to save the life of a mother whose life is endangered by a physical disorder, physical illness, or physical injury, including a life-endangering physical condition caused by or arising from the pregnancy itself.”

You can find the Nebraska law here, at section 28-328. The Supreme Court case that determined the exception in unconstitutionally narrow is Steinberg v. Carhart, 530 U.S. 914 (2000).

It does not, as at least two judges have already preliminarily determined. Congress passed the law knowing full well that it would be struck down by the courts. The only thing they did differently here was to add a lengthy series of Congressional “findings” that purport to show that a “partial-birth abortion” is never medically necessary. The Supreme Court already rejected that factual contention in Steinberg, and the courts are exceedingly unlikely to defer to Congress on that matter.

This legislation was dead at birth.

Well, yeah. :slight_smile: That’s why I said it was a finding and offered it as something that set the tone of the rest of the bill (in the sentence immediately preceding the quote). It ain’t my opinion!

Regarding (2), I don’t disagree with anything you say. Except that I would always choose to have an abortion if I became pregnant. But then, I’m male so a pregnancy would be life-threatening at worst, very bizarre at best. :smiley:

(3) is where I think things get interesting. I agree that repeatedly introducing unconstitutional bills is often abused. As kwildcat said, the legislators who are doing it are abusing the system and showing contempt for the judicial branch. No question, many such bills are reprehensible.

But, I think there are situations where it makes sense to introduce legislation that a court has called unconstitutional in the past, because the way the courts interpret the law changes over time, and it’s the only way to get them to revisit an issue.

I don’t see an easy way to change the system that would allow the courts to review past rulings while prohibiting legislators from pulling this kind of BS.

Is there anyone out there with more historical background then I who can shed light on this? Has it always been a problem? Was it less of an issue in the past (perhaps because there was more respect for and understanding of the seperation of the branches)? Does there currently exist a way for the courts to review past rulings without the legislators re-introducing bills?

C’mon, minty, if you’re going to venture into Punland, you can go farther than “dead at birth”. Thanks for the explanation, though.

This iseems even less bold than trying to pass this as a constitutional amendment (which no court can declare unconstitutional), despite it appearing to be an actual law. At least there’s some finite chance of an amendment being ratified.

And there’s no chance of Roe vs. Wade being overturned when this bill gets to the Supreme Court? (Which could be after the composition of the court has changed–Bush ain’t gonna apoint someone who’s pro-choice.)

Thanks, all.