The Conservative Circuit-Court Conspiracy

By Joshua Holland, AlterNet. Posted June 8, 2005.

Last Friday, a three-member panel of the 4th Circuit Court of Appeals -- one of the country's most conservative circuits -- upheld a ruling that Virginia's late-term abortion ban is unconstitutional.

It was not the first time that such legislation -- a sop to social conservatives -- has run into trouble with the judiciary; courts in California, Nebraska and New York have made the same findings about the federal PBA ban passed by George W. Bush in 2003.

In each of those cases, the religious right has decried the decisions as evidence that an out-of-control judiciary is bent on remaking the nation in its own, presumably secular and liberal, image. When the federal ban was first blocked by a California court, the Southern Baptist Convention's Richard Land called the decision "yet one more tragic example of a federal judiciary whose moral compass has been grossly demagnetized," and Roberta Combs, president of the Christian Coalition, added: "It is reprehensible that judicial tyranny, such as today's decision, continues unabated in this country." When the New York decision was handed down, Troy Newman, President of Operation Rescue West, predicted: "the ones who will suffer from this arrogance are the tiny babies who will be mercilessly butchered by ghoulish abortionists who... take pride in late-term child killing."

But back in the reality-based community, it is just as clear that the courts have adhered to settled case law. According to the Associated Press, Richard Williams, the judge who handed down the original decision in the Virginia challenge called it a "no brain case" and "unconstitutional on its face." The appeals court, in upholding his ruling, agreed that it violated constitutional law "because the Virginia Act does not contain an exception" to protect a woman's health.

While the fine points of abortion law can be debated all day, one thing about the Republicans' (and some smarmy Democrats') "partial-birth abortion" bans is incontrovertibly clear: they fly in the face of the Supreme Court's unambiguous decision in Stenberg v. Carhart, the 2000 case that overturned a similar ban in Nebraska.

This begs the question why conservatives would craft bills that directly challenge case law established by a Supreme Court tilted in their favor? If they truly found the procedure in question so reprehensible -- they often claim that it blurs the line between abortion and infanticide -- why would they pass up the opportunity to ban it once and for all?

I believe they do it intentionally, writing bills with what amounts to judicial "poison pills." Call it legislative activism -- crafting laws that directly challenge legal precedent and, in so doing, create win-win scenarios for the right: in the unlikely event the bans are upheld, they would severely erode a woman's right to choose her own reproductive healthcare. If they're overturned, it would fire up the Republicans' socially-conservative base and support the view that 'secularists' -- in the words of David Limbaugh, author and legal scholar (and Rush's brother) -- "are waging a war against Christianity and the freedom of Christians to be involved in public life."

I come to this conclusion by answering an admittedly cynical question: Is it better for Republican leaders to ban less than one percent of the abortions performed in the United States, or would they prefer to stir up the passions of their base in time to walk precincts and man phone-banks for the 2006 mid-term elections? And while we're at it, how valuable will the letters, calls and protests of 20,000,000 pissed-off evangelicals be during an upcoming Supreme Court fight?

Legislating after Stenberg

When the Virginia law was introduced in 1998, legislators were working in a murkier legal environment than exists today. In Women's Med Prof v. Voinovich, the 6th Circuit Court of Appeals had found the Ohio PBA ban unconstitutional according to the standard set in the 1992 case Planned Parenthood v. Casey, which prevents states from placing an "undue burden" on a woman's access to abortion services. However, the Ohio law was substantially different from similar bans in other states, so the question was far from settled.

Not so of the federal ban signed into law by George W Bush in 2003. In 2000, after the 7th Circuit Court of Appeals had upheld similar laws in Illinois and Wisconsin and the 4th and 6th Circuits had overturned bans in five states, the Supreme Court weighed in on the Nebraska ban in Stenberg v. Carhart.

Stenberg v. Carhart, while split five to four, is not a wishy-washy decision. The majority found that Nebraska's law violated the constitution as interpreted in both Roe v. Wade and Planned Parenthood v. Casey.

The Supremes made two important findings. First, the Nebraska ban didn't have an exception for cases when the health of the mother might be threatened (in Casey, the court had forbidden restrictions on abortion that didn't contain such an exception). Second, the court found that the ban on "partial-birth abortions" (a term coined by abortion foes that appears nowhere in the medical literature) was too vague and, as such, placed too great a burden on a woman's right to determine her own care.

What's remarkable about the bill signed into law by President Bush in 2003 is that just below 50 percent of the text is devoted to explaining why Congress is justified in ignoring the court's findings in Stenberg. The essence of the argument is that Congress has different standards of evidence and needn't consider the same data that the courts looked at. The drafters support the argument with case law from challenges to the Voting Rights Act and a telecommunications law, neither of which were questions of scientific fact.

And, of course, when the law is challenged, the courts hearing the case would have to use the judicial rather than the congressional standard of evidence.

The text of the law argues that "the great weight of evidence presented at the Stenberg trial and other trials challenging partial-birth abortion bans, as well as at extensive Congressional hearings, demonstrates that a partial-birth abortion is never necessary to preserve the health of a woman." It goes on to say, "A prominent medical association has concluded that partial-birth abortion is 'not an accepted medical practice.'" (Physicians who testified before Congress included members of the Christian Medical and Dental Associations.) The American Medical Association and the American College of Obstetricians and Gynecologists, while differing slightly in their positions, both opposed the ban as it was written.

To claim that there is anything approaching medical consensus on whether the banned procedure can have a positive effect on maternal outcomes is pure hokum. As the ban's supporters are quick to argue, there have been no controlled studies comparing different abortion procedures, an argument that cuts both ways.

Judge Richard Casey, who presided over the New York challenge to the federal law, agreed. Leading up to the trial, Casey was considered by anti-choice activists to be the best hope to support the ban. He opined that the procedure was "gruesome, brutal, barbaric and uncivilized," and subjected the fetus to "severe pain." According to The New York Times, Casey dismissed the testimony of A.C.L.U. witnesses as being less than credible. Nonetheless, he wrote that Congress had enacted the law "without seriously examining the medical" issues. "This court heard more evidence during its trial than Congress heard over the span of eight years," Casey wrote. He held that lawmakers had "ignored furious dissension among doctors over the safety and necessity" of the abortion method. The lawmakers had overlooked testimony in their own hearings, he said, according to the Times.

Furthermore, it is impossible to imagine that a scientific consensus could be achieved given Stenberg's other significant finding: that the definition of "partial-birth abortion" was unduly vague.

Testifying in the Nebraska challenge to the federal ban, Dr. Leroy Carhart (of the original Stenberg v. Carhart case) said that as the federal ban was written, "There are at least 21 different procedures that it covers." He added: "There are terms in this act that I do not understand... and that have many definitions." According to Omaha's NBC affiliate, Carhart said that the act could affect common abortions performed "as early as 12 weeks into the pregnancy."

Supporters of the ban claim that they oppose a health-of-the-mother exception because it would lead to numerous such claims, rendering the ban effectively meaningless. However, that's a hard argument to swallow given that they asserted in the original Stenberg trial that the ban would not place an undue burden on women's access to abortion given its rarity (an assertion the court found irrelevant).

Conspiracy much?

Supporters of the federal PBA ban have made a blizzard of arguments to support their case, many obscure and complex. But three points can't be disputed. The first is that courts hearing challenges to the law must rely on the findings of Stenberg v. Carhart rather than Congress's 1,600-word essay on why those findings are wrong. To do otherwise would be the height of right-wing judicial activism. The second is that, despite the claims of supporters, there are well-credentialed physicians who will testify that dilation and extraction procedures (or D and X -- the procedure that the laws are supposed to regulate) in some cases are a safer form of abortion than the available alternatives. Lastly, a ban specifically on late-term D and X with an exception for the health of the mother would not face significant opposition.

Let me stress the point: had the goal of those writing these laws been primarily to halt a practice they consider "baby-killing," it was a victory they could have easily achieved years ago. Senator Barbara Boxer (D-California) offered a commonsense amendment to the federal PBA bill crafted in 1995 that would have excepted those abortions performed "where, in the medical judgment of the attending physician, the abortion is necessary to preserve the life of the woman or avert serious adverse health consequences to the woman."

Bill Clinton, who vetoed PBA bans in 1996 and in 1997, promised to sign the bill if such a provision were included, but the amendment didn't make it into the final draft. If it had, the issue would have been off of the table for ten years now. It's possible that with laws like these, abortion -- the greatest wedge issue yet -- can be fought in perpetuity and never won or lost.

But it's not the only area where Republicans' "aggressive" legislative challenges to the judiciary will play out. Supporters of the Federal Marriage Amendment claim that its intent is to "protect" traditional marriages -- a position that polling shows has a (slim) margin of popular support. But the text of the proposed amendment (re-introduced in January by Wayne Allard (R-Colorado)) prohibits both same-sex marriage and "the legal incidents thereof," a phrase that opponents warn might impact civil unions and even private sector partner benefits and is guaranteed to invite 14th Amendment challenges.

Similar "poison pills" are in a number of the state "marriage protection" Amendments. Watch for some of those state laws to be overturned in the next few years. They, too, will be greeted with raves against "judicial activism" and taken by social conservatives as further proof of the perversion of the "liberal elites" they think are really running the show.

Joshua Holland is a fair-trade activist, a freelance writer and a regular contributor to The Gadflyer blog.

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