Archive for Law

SCOTUS, you displease me mightily.

Yesterday, as I’m sure you’re all aware by now, the Supreme Court of The United States voted to uphold the “Partial Birth Abortion Ban Act of 2003,” previously struck down by two circuit courts. In taking this action, please note, the Court did not explicitly limit post-viability abortion – it simply decided that one type of medical procedure – the inadequately defined “intact D&E,” was “gruesome and inhumane,” and “never medically necessary,” because it involves puncturing the skull of the fetus while the body remains intact. The more common method, dismemberment of the fetus in utero, was deemed acceptable. Both of these procedures are used for pre- as well as post-viability abortions.

As Ema eloquently said, regarding a brief she read earlier in this case:

If your argument–as articulated by Rep. Steve Chabot (R-OH), a sponsor of the federal ban–is that you want to ban a medical procedure because it’s barbaric and gruesome and inhumane, on what basis do you declare an intact delivery barbaric and gruesome and inhumane, but one involving dismemberment, not so much?

And since I’m asking questions: Why is a D&E barbaric and gruesome and inhumane, while bleeding out from a torn cervix is civilized and acceptable and humane?

From the same post (italics are quotes from the brief):

(A) the government wishes to ban a medical procedure but fails to define it (The uncontested evidence presented in the New York trial established that any D&E or induction…may fall within the definition of “partial- birth abortion” contained in the Act.)

(B) the government seeks to stigmatize one [procedure] as aberrant [intact D&E] and to embrace the other as “standard [D&E involving dismemberment], despite the fact that whether the fetus is dismembered or removed intact, the physician must reduce the size of the skull to complete the delivery, and that both variants are used at the same point in pregnancy.

While I’m quoting, I honestly don’t feel I can say it much better than Scott Lemieux presciently did here, back in November:

If the Court overturns the health exemption [ed: which it did], this will deal a body blow to Casey, giving states hostile to abortion much more leeway to legally harass doctors and patients in ways likely to have a chilling effect on abortion providers. (Remember that D&X abortions are not limited to post-viability abortions.) If the Court gives a free pass to legislatures that make bogus medical claims to evade the health exemption requirement, as the drafters of Federal Partial-Birth Abortion Act did, this will have the same effect with an extra layer of dishonesty added on top. (It will also send a signal to legislatures that the Court will not scrutinize the motives and consequences of abortion regulations with any seriousness, further diluting the “undue burden” restriction.) If, alternatively, the Court upholds the law pending “as applied” challenges, this will make challenges to abortion laws much more difficult and expensive, exacerbating the class inequities already present in abortion access.

And irrespective of the precise rationale the Court ends up citing, the larger problem is that, because the distinction between D&X abortions and any other procedure is wholly arbitrary, legislatures can invent further distinctions and continue to tie the hands of abortion doctors. As Eve Gartner, the lawyer representing Planned Parenthood, put it during the oral argument, “to allow such an expansion of pre-viability abortions that can be banned would set the stage for continued legislative efforts to ban other iterations of the classic D&E method of abortion, until truly there would be nothing left at all of Casey‘s holding that it is unconstitutional to ban second-trimester abortions.”

Partial-birth abortion bans involve inventing a scary-sounding but scientifically meaningless term, applying it to an abortion procedure morally indistinguishable from any other, and using the legislative results as a Trojan Horse to undermine popular judicial protections of a woman’s right to choose. They are the ultimate example of the increasing cynicism and emptiness of the leadership of the American “pro-life” movement, and the crass exploitation of its rank-and-file by Republicans (and too many Democrats) happy to use the issue to mobilize the base as long as the access to abortion of women in their social milieu aren’t affected. Congress is employing rank dishonesty to play political games with the lives and bodies of American woman. The Supreme Court may not end up telling it to stop, but it certainly should.

But, of course, it didn’t.

Further reading:

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Civility and Justice.

Yesterday, as I was driving from work to tutoring, radio tuned (as nearly always) to NPR, I heard an All Things Considered story about the current Supreme Court consideration of the standard for deportation and the definition of “aggravated felony.” “At issue,” explains the program’s website, “is not whether someone should be deported for committing a felony, but whether states may set a tougher standard for staying in the United States than does the federal government, which has the power to regulate immigration.” In one example given in the story (pardon the lack of citation, I can’t find this case on the internets), a Trinidadian grandmother who came to the U.S. when she was 11 was convicted of simple marijuana possession under state law, which considers such possession a felony. The same charge, under federal law, is a misdemeanor. Because she now has a felony on her record, she is facing deportation; the case before the Supreme Court will determine whether Grandma can stay in the U.S.

What struck me about this story, besides the patent stupidity of attempting to label simple possession an aggravated felony in order to deport legal residents, was this statement by (our favorite!) Antonin Scalia:

“the doctrine of standing is more than an exercise in the conceivable. … Nobody thinks your client is really, you know, abstaining from tequila down in Mexico because he is on supervised release in the United States.” [PDF]

Exsqueeze me? Tequila? Come again?

I can’t say I was shocked to hear such dismissive rhetoric from Scalia; he’s not known for politeness, after all. But I was surprised by the near-absence of reaction in the media today. When did this kind of offensive language by officials in our judiciary become acceptable, and what does that mean for justice in the United States?

Dahlia Lithwick, in Slate, approaches this discussion.

The more interesting question is about Scalia’s deliberate carelessness with language, his sense that he is somehow above the sorts of linguistic delicacy the rest of us expect in our dealings with others. Indeed, he seems to think it’s his obligation to be ever more reckless with his words, perhaps because he’s about the only guy left who faces no consequences for his rhetorical body-slams.

When Virginia Senator George Allen referred to a young man as “macaca,” and said “welcome to America,” the media called him on his hateful speech. It appears that Scalia escapes the same sort of attention, perhaps because there is no campaign being run against him, and therefore no one who will benefit directly and immediately from his censure.

The backlash against “politically correct” language has created an atmosphere in which some people delight in saying things to offend. When those people are comedians, it may be funny or not, but in the end it doesn’t matter too much. When judges engage in such blithe disregard for the feelings of others, however, there’s good cause for concern. How are we to be confident that this disregard doesn’t extend to their policy-making? In Scalia’s case, I certainly don’t see a ready distinction between his words and his actions.

*Update: CNN is deliberately undermining me, dammit.

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I’ll do better tomorrow, I promise.

My prediction of yesterday proved correct: I did not get to sleep until 3a.m. Therefore I am incoherent.

Also, the Secretary of State rejected my Amendment to Articles of Incorporation because I did not realize that Ca. Corp. Code sections 202 and 204(b) did not apply to corporations formed prior to 1977, and therefore I did not include an election to be governed by all of the provisions of the presently effective law, under Ca. Corp. Code section 2302. Alternatively, I could have opted to conform to the pre-1977 Corporations Code by stating “the total number of each class of shares, the par value per share for each class, and the aggregate value of each class (aggregate value calculated by multiplying the number of shares in the class by the par value per share).”

So if I’m incoherent because I’m tired, what’s their excuse?

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You may be a criminal if . . .

. . . You help your sister get an abortion without telling your parents.

  • Obvious fact #1: Young people should be safe with their parents.
  • Obvious fact #2: Young people are not always safe with their parents.
  • Obvious fact #3: Whether or not a young woman is, in fact, safe with her parents, she may not trust them enough to tell them that she wants to have an abortion.
  • Obvious fact #4: If a young woman trusts her parents enough to tell them that she wants to have an abortion, she will tell them.
  • Obvious fact #5: If a young woman does not trust her parents enough to tell them that she wants to have an abortion, she is left with two options: Have a child she does not want while living with parents she does not trust, or obtain an abortion without her parents’ knowledge and consent.
  • Obvious fact #6: The second option requires that, if the young woman lives in a state with parental consent laws, she must travel across state lines.

Meet the disingenuously titled Child Custody Protection Act. Read it. It’s short.

Now, in the transcript of the 2004 Judiciary Committee hearing on this bill, Republican Senator Jeff Sessions of Alabama claims that this legislation “is not about abortion. It is about the custody rights of parents.” Yet he goes on to cite the Mann Act (also charmingly known as the White Slave Traffic Act), which originally prohibited the transport of women across state lines for prostitution (and other “immoral purposes”), as well as Federal criminal statutes prohibiting the transport of stolen vehicles across state lines. Both of which are illegal. Which abortion isn’t. Yet.

Further evidence that this law is, in fact, about abortion, may be seen in the decision to insert it immediately after Title 18, Section 117 of the U.S. Code – which is the Mann Act, as amended in the ’70s. This Section has been updated, and is currently entitled TRANSPORTATION FOR ILLEGAL SEXUAL ACTIVITY AND RELATED CRIMES. The Child Custody Protection Act is now Section 117a.

And just in case you weren’t yet completely cynical about the true motives of our noble political representatives, the Senate rejected a proposed amendment to the bill by New Jersey Senators Lautenberg and Menendez, which would have created teen pregnancy prevention programs which taught contraceptive methods in addition to abstinence. Because, y’know, that would encourage twelve-year-olds to fuck horses. Or something.

Oh – and it completely violates federalism in ways best explained by this ACLU memo.

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