Talk:Gonzales v. Carhart

From Wikipedia, the free encyclopedia

This article is part of WikiProject U.S. Supreme Court cases, a collaborative effort to improve articles related to Supreme Court cases and the Supreme Court. If you would like to participate, you can edit the article attached to this page, or visit the project page.
B This article has been rated as B-Class on the assessment scale.
This article is within the scope of WikiProject Abortion, which collaborates on articles related to abortion, abortion law, the abortion debate, and the history of abortion. For more information, visit the project page.
B This article has been rated as B-class on the quality scale.

Contents

[edit] Merge: Gonzales v. Planned Parenthood into Gonzales v. Carhart

Merger. (Gonzales v. Planned Parenthood) and It's the right thing to do, since the Supreme Court consolidated the cases. If I end up writing the article, I'll merge them. ---Axios023 17:19, 18 April 2007 (UTC)

  • Support the merge - many well known Supreme Court cases are actually consolidated cases, and are almost always known by only one case name. Cheers! bd2412 T 17:28, 18 April 2007 (UTC)
  • Support. It's the same opinion. --Cdogsimmons 17:30, 18 April 2007 (UTC)
  • Support the merge. Sure, that would be fine. The only reason they weren't merged previously is because we didn't know whether the Supreme Court would issue separate decisions (as in Roe v. Wade and Doe v. Bolton), or which case the Court would treat as primary.Ferrylodge 17:32, 18 April 2007 (UTC)
  • Support as above. --Flex (talk|contribs) 17:53, 18 April 2007 (UTC)
  • Support. Same opinion, similar ideas, make it the same article. └Jared┘┌talk┐  19:54, 18 April 2007 (UTC)
  • Support --MZMcBride 19:57, 18 April 2007 (UTC)
  • Support Jon 19:58, 18 April 2007 (UTC)

[edit] History section

I do not believe we should have separate articles on every case that dealt with the PBA Act. However, there was good, sourced information concerning those over at Partial-Birth Abortion Ban Act, which was recently deleted completely, saying The history of lower court activity can be found at the linked article on Gonzales v. Carhart. I came here to find that the detail of the blanked material was greater than the detail here. So we have a case of sourced, detailed information being blanked without prior discussion. I agree that this material should be centralized, and this article is a good a place as any to have it. I believe the material from the PBA Ban article that I moved here is relevant and fitting. There is no other place on wikipedia to discuss the District courts' decisions, and I do not believe there was undue weight or too much space. I'd propose restoring the sourced info on these decisions. However, if this is not the right article, perhaps we could discuss moving that content back into the PBA Ban article.-Andrew c 23:32, 18 April 2007 (UTC)

I have no problems with most of the edits you made, Andrew c, but (as indicated in my edit summary) it is backward for this article to quote district courts at length, slightly quote circuit courts, and quote the Supreme Court the least of all. If you look at other Wikipedia articles on Supreme Court decisions, they rarely (if ever) quote the district courts, much less quoting them more than the circuit courts or the Supreme Court. Look at the article on Roe v. Wade, for example, and you will find barely a mention of what was said by the district court.
Moreover, I don't think the district court and circuit court quotes that you inserted here were balanced. They did not include anything from the Second Circuit opinions (Judge Walker blasted the Court's abortion jurisprudence, and Judge Straub's dissent was eloquent). Even the district court quotes that you inserted carefully avoid quoting district court Judge Casey, who called the procedure at issue "barbaric." Even if the quotes you inserted were not heavily slanted, I still think they would be highly unusual for one of Wikipedia's articles about a SCOTUS decision.
If you think the lower court decisions in this case were momentous enough to warrant a lot of discussion here at Wikipedia, then you might want to consider starting a new article on Gonzales v. Carhart Lower Court Decisions. However, if you do that, please try to present balanced material, instead of slanting the quotes only one way. Thanks.Ferrylodge 23:51, 18 April 2007 (UTC)
I also note, that as is without the detailed history, the high level lower court history here is already covering a much higher percentage of the article than most of the wiki US Supreme Court Articles at the expense of the supreme court. Unfortunately, unless we want to get really graphic, I don't see a way to expand on the majority's reasoning. Jon 00:16, 19 April 2007 (UTC)
My point is that I agree that there shouldn't be an article on the Lower Court Decisions. However, sourced material was deleted from the Act article under the assumption that the same material could be found here (which simply isn't the case). Perhaps that information isn't relevant here, because, as you state, other case articles do not go into that much detail. Maybe we should move it back to the Acts article after all, and make the lower courts decisions here more concise. My concern is that there was detailed information already here on wikipedia, and it was removed. I'm just trying to find a home for it. If this isn't the right article, so be it.-Andrew c 00:20, 19 April 2007 (UTC)
Andrew c, the only thing removed here were some lengthy slanted quotations from two of the three district courts. If you want to find a home for quotes taken from the the district court opinions in this case, then why do you oppose creating an article on the Gonzales v. Carhart Lower Court Decisions? I'm not enthusiastic about such an article, because I don't see any need to quote some of the district court decisions at length. But if you feel a need to quote them at length, then why not have a new article that does that?
More generally, the value of information changes. When a SCOTUS decision is issued, that makes info from the lower courts less valuable. Just because quotes from the lower courts are accurate does not mean they still belong in Wikipedia.
I do not think that lengthy quotes from the district courts belong in this article, or in the article about the Act. Maybe a statement from someone who wrote the act would be appropriate there, but I just don't see the value in putting district court quotes there. Were the district court quotes even significant enough to be mentioned by Ginsburg's dissent? They were not.Ferrylodge 00:32, 19 April 2007 (UTC)
To the extent that the lower courts' decisions are relevant to the Court's resolution of the issues, the suggested content for articles relating to Supreme Court cases demands that those decisions be summarized here. However, the lower courts' opinions are no longer good law, and thus don't merit separate opinions of their own.---Axios023 03:01, 19 April 2007 (UTC)
Agreed, Kennedy's decision really took the US District Courts to task in his decision in wording that would seem to apply to all future cases. For instance, Kennedy is clearly saying the lower courts can't overrule a finding by Congress unless it's clearly outdated or in error. Jon 13:36, 19 April 2007 (UTC)

[edit] Support or Opposition?

I'm a bit confused. If you say the Court "struck down the statute", I can only assume the statute in question is the Partial-Birth Abortion Ban Act, since it's the only law in question here. Yet, the decision was in favor of keeping the Act. Huh? LordAmeth 00:20, 19 April 2007 (UTC)

Actually the article says that some of the lower courts "struck down the statute." The Supreme Court said they were wrong.Ferrylodge 00:36, 19 April 2007 (UTC)
Ah, I see that now. I don't know how I missed that. Thanks. LordAmeth 09:41, 19 April 2007 (UTC)

I've changed the "this statue" and "the statute" references by simply naming the Act. That way there can be no confusion. I would appreciate it if someone else would fix the sentence which now says that the court upheld something to also mention that the appeals succeeded/were succesful and thus that some previous rulings were thrown out/dismissed. I'd do it myself but I don't know the correct terminology. --MarSch 10:00, 19 April 2007 (UTC)

[edit] Privacy?

Why the mention of "privacy" in the Decision section of the article? It sounds like somebody wants readers to believe that the justices ignored the issue of privacy when they shouldn't have. It sounds weasely. Srnec 02:14, 19 April 2007 (UTC)

I rephrased. Hopefully, it sounds less weaselly now. I think it's an important point that Justice Ginsburg is seeking to ground this right in equality rather than privacy, and that the Court didn't mention privacy at all.Ferrylodge 03:31, 19 April 2007 (UTC)
I agree that there is a significance to it, but I thought the wording was suggestive (and therefore POV or OR). It's improved now, though it still seems to kind of pop out of the blue (the mention of privacy). Srnec 04:32, 19 April 2007 (UTC)
I think it's still rather distracting to the flow of the article in the current place maybe simply state in the decision that because the court "assumed" Casey was binding, that none of the justices felt the need to go into the rationale behind it. Jon 17:55, 20 April 2007 (UTC)

[edit] O'Connor

It's been mentioned a lot on NPR and other news sources the difference that the change from O'Connor to Alito has made on the outcome... Do you think this is relevant and how should it be included (and do you know of any good sources for it?). gren グレン 05:46, 19 April 2007 (UTC)

This is speculation, and wouldn't belong in the article. Jon 13:36, 19 April 2007 (UTC)
If it was my speculation, no. But, I was referring to news items I heard about the change of court membership. It's definitely legitimate providing we cite it well. I was just curious if anyone knew of good sources for it. I forgot who was talking about it on NPR. gren グレン 04:42, 20 April 2007 (UTC)
Perhaps in another article, but definately not on the supreme court decisions. None of the others speculate (even sourced) on if supreme court makeup had been different at the time of the decision, and neither should this article. If someone places a news commentary on if O Conner had still been on the court, then someone else would find news commentary on how Cassey and a host of other 5-4 decisions would have turned out differently if Bork had been confirmed and cluter up all those decisions. Jon 17:47, 20 April 2007 (UTC)
I would say it is relevant. I heard it on NPR as well, and of course they are a reputable source. If someone was to look up this article many years from now, they should know that the different court makeup (due to Bush) is a key factor in the court's decision to in essence go against the precedence set by Roe v. Wade. Unsuspected 22:10, 21 April 2007 (UTC)
All this needs to be reliably sourced, but would offer this comment: There appear to have been three major consequences resulting from the center moving from O'Conner to Kennedy. First, O'Conner was a constraining influence on Kennedy and the end of this influence highlights Kennnedy somewhat more to the right than first appeared. Kennedy had agreed to use the same (somewhat vague) language in Casey as O'Conner; it now appears they actually meant different things by phrases like "undue burden" etc., and the Court's opinions will from here on be based Kennedy's more conservative interpretation. Second, O'Conner, was also a constraining influence some of the Court's liberals, and now that she is gone the dissent appears to feel free to move to the left of where O'Conner was and support Ginsberg's new approach. Third, a new coalition, led by Kennedy appears to have formed: The Court's two new conservative Justices joined Kennedy rather than offering their own opinion. The result is that the let's-reverse-Roe vote had only two Justices, which turned out to be smaller than it has been for some time previously. --Shirahadasha 21:04, 22 April 2007 (UTC)
I agree with Jon. Speculation on that subject would open up a can of worms. If someone wants to simply mention that the make-up of the Court has changed since Carhart, that might be okay, but to include our own speculation --- or the speculation of others --- about the ramifications would not belong here. The place for that kind of thing would be (if anywhere) at the biographical pages for George Bush, Samuel Alito, and/or Sandra Day O'Connor.Ferrylodge 21:24, 22 April 2007 (UTC)

[edit] Out of place sentence

"The constitutional rationale of the Court's prior abortion cases (i.e. "due process") was not mentioned by any of the opinions." I've cut this sentence since it doesn't belong under the dissent section. I'm also not sure where (if any) place it belongs, this is just saying noone used this rationale; I'm sure there's a large list of rationales noone used. Jon 13:36, 19 April 2007 (UTC)

   Actually the Due Process protection of liberty is the only rationale that's justified one's medical privacy to abortion.  The only other possible argument is to say that the 14th Amendment's guarantee of equality as applied to sex/gender guarantees medical privacy to abortion.  That the court just ignored all of its previous caselaw surrounding Due Process is hugely significant.

Actually the Due Process protection of liberty is the only rationale that's justified one's medical privacy to abortion. The only other possible argument is to say that the 14th Amendment's guarantee of equality as applied to sex/gender guarantees medical privacy to abortion. That the court just ignored all of its previous caselaw surrounding Due Process is hugely significant.

The court in it's decision "assumed" that Casey is binding. This is probably why no one brought up this. In addition, "Due Process" in realtionship to abortion is all in the 14th amendment, which appears to pertain only to the states and local govt. (Several abortion cases are listed on that article.) However, it's the 5th amendment that applies to the federal government and I didn't see any abortion related cases on that article at all. Jon 18:00, 20 April 2007 (UTC)

[edit] Commerence Clause

Who is Thomas (and Scalia) chiding for bringing up the Commerence Clause in their concurrence? Thomas is specially mentioning that neither side raised the commerence clause and none of the lower courts did either. Jon 13:41, 19 April 2007 (UTC)

CT is saying that he'd consider striking down the ban if it were challenged facially on commerce clause grounds, but here it was challenged on due process grounds. Plenty of analysis on the blogs on this point out there now. See, e.g., this post. --Flex (talk|contribs) 15:33, 19 April 2007 (UTC)
Thanks, I thought he was chiding either Kennedy or Guinsberg for bringing up the issue. I didn't see in either of their opinions this, but thought I'd missed it. Jon 16:06, 19 April 2007 (UTC)

[edit] External Links

All of the external links are decidedly "pro-choice". I think for Wikipedia to remain as an impartial source of information on these types of debates there should be an equal amount of access to both sides of the issue.—The preceding unsigned comment was added by Carst (talk • contribs) 11:36, 19 April 2007.

Two of the three external links are against the PBA.Ferrylodge 07:55, 20 April 2007 (UTC)
I would sugest rather than deleting one of the "pro-choice" links to bring it into balance that a "pro-life" web site that is realevent to the article be found and added. Jon 17:39, 20 April 2007 (UTC)

[edit] Feminist Perspective

Is there room to note the debate surrounding the underlying perspectives? Notably Kennedy's comment that "It is self-evident that a mother who comes to regret her choice to abort must struggle with grief more anguished and sorrow more profound when she learns, only after the event, what she once did not know: that she allowed a doctor to pierce the skull and vacuum the fast-developing brain of her unborn child, a child assuming the human form." represents a paternalistic (this is descriptive, whether paternalism is justified is a separate debate) view of the state and women that underlies the whole decision. This touched off a raw nerve for Ginsberg, a '70s liberal feminist for whom equality is defined in giving women the exact same rights and levels of protection as men. Her dissent is interesting in this regard. There are things at play here more than the literal legal analysis. We could probably give room for this at a descriptive level in the main article. The problem is that this case is so recently decided that sourcing comes from more informal sources like the feminist academics familiar with it all. —The preceding unsigned comment was added by 216.165.1.50 (talk • contribs) 15:28, 19 April 2007.

I think it's unwise and against WikiPolicy to venture beyond what RGB herself said in this respect. Doing otherwise would mean that we would have to make room for all amici curiae to offer their analyses and perspectives, too. I answer doubly negative if such a section must rely on "informal sources" -- see WP:RS. --Flex (talk|contribs) 19:44, 19 April 2007 (UTC)
That being said, perhaps quoting Kennedy and Ginsberg verbatim as part of the sections on their arguments would be appropriate. That his words are paternalistic is pretty self-evident, even if a full-on discussion of paternalism would be out of line. Let them speak for themselves. Darkfrog24 15:11, 24 April 2007 (UTC)
I think Kennedy's opinion is paternalistic in the sense that it continues to deprive women of the right to vote on the issue of second-trimester abortion. Over 72% of women in the United States believe that second trimester abortion should be illegal. Yet, Kennedy's opinion continues to force on women a right that the vast majority of women believe no woman should have. My point here is that the paternalism argument goes both ways, and I would not like to see passages of these opinions selectively quoted in order to highlight only one side of the paternalism argument.Ferrylodge 19:57, 25 April 2007 (UTC)

Surely there is room in the article for commentary on the decision from non-lawyers? I find it a bit bemusing that nowhere does the current article mention that in this anti-abortion decision the court split along religious lines, with the five Catholics in the majority and the four non-Catholics in the minority. - Nunh-huh 21:13, 31 May 2007 (UTC)

[edit] Well Done, Friends

Good job on the general reporting and summary, my fellow wikipedians! Gautam Discuss 19:15, 23 April 2007 (UTC)

[edit] Quote related to the 5th Amendment Jurisprudence needed

The summary chart says that the 5th Amendment was applied to this case, but there's still no quote of any of 5th amendment jusrisprudence anywhere in the opinion section. Jon 21:38, 23 April 2007 (UTC)

The Eighth Circuit explained that it was striking down the PBA Ban based on the Fifth Amendment: "One amicus suggests Stenberg does not control because that case was decided under the Fourteenth Amendment, which, of course, does not apply to the federal government. While Stenberg was indeed a Fourteenth Amendment case, the Due Process Clause of the Fifth Amendment is textually identical to the Due Process Clause of the Fourteenth Amendment, and both proscribe virtually identical governmental conduct." SCOTUS didn't mention this explicitly, but of course they overturned the Eighth Circuit decision, meaning that SCOTUS did not think the PBA Ban conflicted with the Fifth Amendment. I'll add something about this in the article.Ferrylodge 21:54, 23 April 2007 (UTC)

[edit] Lyle Denniston's commentary

Does this really belong here (even sourced)? All we know here is she's a blogger / reporter and this quote appears to be more commentary instead factual statements. Jon 13:12, 24 April 2007 (UTC)

Actually, the source is a blog (SCOTUSBlog), which as I recall is not an acceptable source for an article, so I'm deleting that portion. Jon 14:49, 24 April 2007 (UTC)

[edit] Legal Analysis Criticism

From the article:

Kennedy's opinion did not touch upon the question of whether the Court's prior decisions in Roe v. Wade and Planned Parenthood v. Casey were valid, but Kennedy did cite Roe and Casey, noting that the pre-viability/post-viability distinction was not implicated in this case

This statement contradicts the actual opinion:

Before viability, a State “may not prohibit any woman from making the ultimate decision to terminate her pregnancy.” 505 U.S., at 879, 112 S.Ct. 2791 (plurality opinion). It also may not impose upon this right an undue burden, which exists if a regulation's "purpose or effect is to place a substantial obstacle in the path of a woman seeking an abortion before the fetus attains viability." Id., at 878, 112 S.Ct. 2791. On the other hand, "[r]egulations which do no more than create a structural mechanism by which the State, or the parent or guardian of a minor, may express profound respect for the life of the unborn are permitted, if they are not a substantial obstacle to the woman's exercise of the right to choose." Id., at 877, 112 S.Ct. 2791. Casey, in short, struck a balance. The balance was central to its holding. We now apply its standard to the cases at bar. (127 S.Ct. 1610, *1626 -1627 (U.S.,2007) emphasis added)

Gonzales v. Carhart affirmed the ruling in Casey and established it as the standard of review for future abortion cases. Casey formed the basis for the ruling. This is significant because Carhart was a majority opinion whereas Casey was a plurality. The statement in the article is off.

The holding in Carhart was the following:

  • The prohibition on intact dilation and evacuation (D & E) procedure in the PBAB is not void for vagueness on its face (5th amendment Due Process requirement)
  • A reasonable reading of the Act is that it does not sweep too broadly to include prototypical D & Es (non-intact D &Es are not banned conforming to Stenberg 530 US 914)
  • Act does not impose unconstitutional substantial obstacle on women seeking late-term, previability, abortions (standard from Casey)
  • PBAB furthered legitimate congressional purpose (5th amendment Due Process requirement)
  • Absence of health exception did not render Act facially unconstitutional because it was not needed (Casey requirement at 879)

The description of the concurrence is off as well. It groups the concurrence with the opinion. The concurrence is not the opinion, it is not binding precedent. Also, Kennedy mentions the Commerce Clause in the opinion itself at 1638 concerning legislative regulation of the medical profession.

Also, state interest in the unborn was mentioned first in Roe. Carhart quotes the part of Casey that quotes Roe. I'll leave the changes to another, because my course would be to start the article from scratch. Legis Nuntius 20:19, 18 May 2007 (UTC)

Legis Nuntius, I disagree with you that Carhart affirmed the ruling in Casey. Quite the contrary. The Court decided Carhart "under precedents we here assume to be controlling" (as the Court put it). The Court said that the challenged statute was consistent with those prior decisions, and therefore the Court did not reach the question of whether those prior decisions were valid. The Court merely assumed they were valid. Obviously, Justices Thomas and Scalia would not have joined the opinion of the Court if the opinion of the Court was a reaffirmation of Casey.
However, I agree with you that there's no reason for the concurrence to be grouped with the main opinion, and therefore I have fixed that. Additionally, I have modified the article to note that the Commerce Clause was also mentioned in the opinion of the Court.Ferrylodge 22:45, 18 May 2007 (UTC)
When the Supreme Court is faced with the Constitutionality of a statute affecting a woman's access to abortion, the court applies the "undue burden test". This was the test in Casey, a plurality opinion that departed from fundamental rights theory of privacy/strict scrutiny in Roe. Undue burden was also the test in Carhart. It is very clear from the Carhart opinion that Casey set a standard for scrutinizing abortion legislation. It was much more than merely assuming Casey was valid; Casey gave "principles accepted as controlling" to Carhart. (at 1632). Controlling principles are much different from assumptions of validity. A controlling principle from previously decided cases is stare decisis. Scalia and Thomas joined the majority and expressed their opinions of Casey in the concurrence because they were contrary to the opinion (Notice Roberts and Alito were not part of this concurrence). They find no constitutional basis for undue burden, but if you read the dissents, it is there (that's 7 justices for undue burden). And the quote from the case is this: "Where it has a rational basis to act, and it does not impose an undue burden, the State may use its regulatory power to bar certain procedures and substitute others." (at 1633). Kennedy, the swing vote, mentions "undue burden" all over this opinion, and yet this is absent from the article. Undue burden is Casey. The court isn't using rational basis alone, and it isn't using strict scrutiny. Carhart comes in between with the undue burden test, which makes that test binding precedent. A court would not be wrong to cite both Carhart and Casey for the undue burden test. This is how Carhart affirmed Casey. Again the statement in the article is off. Legis Nuntius 08:02, 19 May 2007 (UTC)
Legis Nuntius, the Court in Carhart did not affirm Casey. As Justice Ginsburg wrote in dissent: “Casey's principles, confirming the continuing vitality of ‘the essential holding of Roe,’ are merely ‘assume[d]’ for the moment, ante, at 15, 31, rather than ‘retained’ or ‘reaffirmed.’” Ginsburg is clearly correct on this point.
Scalia and Thomas did not merely concur in the judgment; they joined the opinion written by Justice Kennedy. Thus, the concurrence begins: “I join the Court's opinion....” The Casey principles were merely “assumed” to be controlling by Scalia, Thomas, Kennedy, Alito, and Roberts. They were not affirmed, but rather were accepted as controlling for purposes of upholding the challenged statute.Ferrylodge 14:22, 19 May 2007 (UTC)
P.S. I've edited the article a bit more, to clarify.Ferrylodge 15:22, 19 May 2007 (UTC)

[edit] "To the navel"

Apparently the decision only banned the procedure when the baby is pulled out past the navel. Is the article accurate, then, in stating that it upholds the PBA Ban Act? Tim Long 23:14, 3 June 2007 (UTC)

It is because the PBA banned those proceedures that perform an intact extraction beyond the navel. The PBA did not ban partial extraction. The navel was a reference point to determine when an extraction could become a partial birth. It may be worth mentioning if this description is common and expected. Legis Nuntius 23:10, 3 July 2007 (UTC)