Stop the Tyrants Part II

Integrity Down the Drain

§D   Is the term "Partial-Birth Abortion" Vague?

The five members of the majority attempted to buttress their absurd assertion concerning the possibility of confusing the D&X with the D&E by faulting the Nebraska Legislature for only describing the D&X with the non-medical term "partial-birth abortion." But the term partial-birth abortion is not at all vague! It is a perfectly exact description of what is being done to the baby. It is the clinically cold and neutral term "dilation and extraction" that is vague. Justice Thomas says as much in his dissent:

[The term D&X] is ambiguous on its face. "Dilation and extraction" would, on its face, accurately describe any procedure in which the woman is "dilated" and the fetus is "extracted," including D&E. In contrast "partial birth abortion" has the advantage of faithfully describing the procedure the legislature meant to address because the fact that a fetus is "partially born" during the procedure is indisputable. The term "partial birth abortion" is completely accurate and descriptive, which is perhaps the reason why the majority finds it objectionable. Only a desire to find fault at any cost could explaing the Court's willingness to penalize the Nebraska Legislature for failing to replace a descriptive term with a vague one. [Thomas dissent: Page 23, emphasis added]

Justice Kennedy also flatly refutes this vagueness claim:

The term "partial-birth abortion" means an abortion performed using the D&X method. ...The AMA [American Medical Association] has declared: "The partial birth abortion legislation is by its very name aimed exclusively [at the D&X.;] There is no other abortion procedure which could be confused with that description." A common-sense understanding of the statute's reference to "partial-birth abortion" demonstrates its intended reach and provides all citizens the fair warning required by the law. [Kennedy dissent: Page 19]

Once again, the majority is obfuscating to hide its bias in favor of partial-birth abortion!

§E   Destroying Constitutional Avoidance

In our system of jurisprudence, the benefit of any doubt goes to the accused, not to the accuser. In constitutional cases, this means that courts are required to consider if a fair reading of a challenged law is possible that will avoid any constitutional problems. Only when this is not fairly possible can a court rule a law to be unconstitutional. But the Stenberg majority throws this important principle -- the doctrine of constitutional avoidance -- to the wind.

Justice O'Connor and her cohorts in the majority attempted to escape any criticism for their deliberately over-broad reading of Nebraska's law by hiding behind the equally improper rulings of lower federal courts. (The removal petiton also demands the removal of the federal judges responsible for these earlier pro-partial-birth abortion rulings.) Justice Thomas had an appropriate answer for this stratagem: He pointed out her brazen hypocrisy by quoting one of her own opinions. In that opinion, Frisby v. Shultz, she made it clear why deference to the lower courts on the partial-birth abortion issue is inappropriate:

While we ordinarily defer to lower court constructions of state statutes, we do not invariably do so. We are particularly reluctant to defer when the lower courts have fallen into plain error, which is precisely the situation here. To the extent they endorsed a broad reading of the ordinance, the lower courts ran afoul of the well-established principle that statutes will be interpreted to avoid constitutional difficulties.

Ah, so Justice O'Connor agrees that an overly broad reading of a statute is "plain error." But she apparently thinks (as do the others in the Stenberg majority) that this principle does not apply to abortion cases! Not even when the abortion in question is more infanticide than abortion!

Remember, judges are not supposed to alter their normal jurisprudence in order to get a prefered outcome in a case. When the members of the majority deliberately ignored the important principle of constitutional avoidance, they committed yet another Judicial High Crime and Misdemeanor.

See the Chapter 3 Table of Contents.

The Stop the Tyrants Project [page 15]: Chapter 3 (Sections D-E)
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