Indeed, which is why the test is so deferential. But, the argument is that it is unconstitutional to act without a rational basis because of the necessary and proper clause.
Renob - rational basis review is at the very heart of the SCOTUS role in ensuring if a law is constitutional on the basis of Equal Protection. A law can treat people differently, but the government must have a reason for so doing. The basis of classification for the differential treatment determines what level of scrutiny should be applied - race/nationality based differences get strict scrutiny, sex based ones get intermediate review, most others (including sexual orientation) get rational basis review.
It means the law is constitutional, despite treating people differently, if the government has a rational basis (very low standard) for treating people differently based on that characteristic.
Do they? Equal protection means that the court needs at least a rational basis for treating different people or different groups of people differently, but do they need a rational basis for treating different procedures differently?
According to the decision, this is what the law bans:
There is also a rational basis review for actions under the commerce clause, I believe. (See, for example, Souter’s dissent in Lopez.)
When the Christian Scientists gain power, you won’t be able to have a blood transfusion unless you first play a round of Russian Roulette. No, that won’t have a chilling effect on the need to have blood transfusions at all.
From my point of view, the problem is your position that your being convinced should be relevant at all. I’m not convinced that the procedure is necessary, but whether I’m convinced or not should be absolutely irrelevant to a woman and her doctor contemplating using the procedure. It ain’t my business and it ain’t yours either.
And it’s pretty obvious that 10-15 passes takes longer than one or two, and is a safer option should speed be of the essence, as it often is in surgical procedures.
And, as **ascenray **says, the only ones who should be deciding this are that woman and her doctor.
However, according to the Ms. article linked earlier in the thread, one problem is a lack of physicians trained to do a certain procedure.
If intact D&E is desired by a woman whose fetus has died in utero, it doesn’t do her any good if technically she’s still legally allowed to have the procedure but has great difficulty in finding a physician who is trained and willing to perform the procedure.
From that article:
In this woman’s case:
Exactly. The ban makes absolutely no sense and protects no one. It makes a procedure unnecessarily more risky for no rational reason.
Can anyone who favors this ban please tell me exactly what you think it accomplishes? Is it somehow a victory for fetuses that they be rended limb from limb in utero rather than have their skulls crushed outside the cervix?
If I read the article correctly, I believe the main problem here was that very few doctors are trained in D&Es because some of them are banned- and most of these doctors that are trained are over 50. New OB/GYNs are frequently not trained in the procedure, which made it extremely difficult for this woman to get one. She had a dead fetus inside her, and was bleeding (but not hemmorhaging) and spent a week afraid that she was going to deliver this fetus herself because no ER would treat her.
So though not all D&Es are banned, it is still rather difficult to get one. Just to clarify.
Why don’t you ask all those “women-hating” Democrats who supported the bill when it passed Congress?
The Supreme Court has spoken. No other basis is necessary.
It’s a living document, you know.
You don’t like it? Tough - the Supreme Court cannot be shackled by anything as mundane as the text of the Constitution. The Constitution says whatever the Supreme Court says it says, and you all get jack shit to say about it. Dogs, know your betters!
Regards,
Shodan
How am I supposed to ask them? And what does partisanship have to do with my question? I asked for ANYONE who supported the ban to explain it. I suspect that nobody can. At best it’s an ill conceived cosmetic measure designed to deceive pro-lifers into thinking that their elected officials are doing something to restrict abortions.
At worst, it’s pure vindictiveness designed to punish women for having abortions.
SCOTUS does not make up the laws, or the constitution, only interprets them. It does not work in a vacuum, but must give a justification for its decisions.
Not according to Scalia.
But the same body has interpreted the same document in opposite ways over time. cf: Plessy (1898) with Brown (1954). No interpretation is permanent.
It is my belief that one reason this case ever came forward is the anti-abortion crowd was revolted by the way PBA works: ( don’t read this if you are squeemish)
If the “awfulness” of a medical procedure is the reason why a legislature should prohibit it, let’s get a whole bunch of bloody pictures of operations and submit them to a committee. Show them in living color and in slow motion, with closeups. Be sure to use a soundtrack of fingernails on blackboard. The procedures that cause anyone to faint or puke should be made illegal.
I agree. Now, where in the constitution does it say that Congress can’t pass ill-conceived measures? Our jurisprudence on abortion is supported very shakily on the text of the Constitution, and where exactly we end up is going to be highly subjective. The whole “undue burden” idea sets itself up to wide range of interpretations.
Of course, if you actually wanted to debate the issue, you’d’ve opened a thread in GD. So I suppose I should just let you bang your head against the wall all you want. You’re pissed at this decision. Fine. Just don’t pretend, once again, that you have the one and only truth on the issue.
Well, that might be the purpose of a tiny, tiny minority of the bill’s supports. Rather, it’s more likely that most people find the procedure abhorrent. They may be ill-informed on the subject, but it does have a rather large “ick factor”.
Does that mean you’re against using the commerce clause to ban partial birth abortions, Shodan?
Something about that article that was linked earlier made me wonder, so I checked it again. It says that most of the doctors who are trained to perform this procedure are over fifty, and only a small percentage of Ob/Gyn programs teach it. But the ban was only signed into law in 2003, and was just upheld by the court. Where are all the doctors who would have been trained in this up to that time. It seems there must have been something else going on, and that the mere possibility of a ban being passed and then upheld can’t be enough to affect standard practice and training that much in a relatively short time.
Interesting question. My quick read of the opinion and statute did not definitively answer it.
My guess is that the Commerce Clause is the source of the authority. Certainly,
the ability of Congress to regulate drugs and medical devices flows from the CC, and I accept that logic.
Regulating a medical practice, IMO, stretches the CC somewhat further. Unfortunately, I dont have the time right now to follow the cases cited in the opinion which may discuss the issue.
(I am aware the the Commerce Clause provided the basis for another Federal law relating to abortion activities, one that the OP almost certainly supports.)