Mirror of Justice

A blog dedicated to the development of Catholic legal theory.
Affiliated with the Program on Church, State & Society at Notre Dame Law School.

Tuesday, January 31, 2006

Ninth Circuit strikes down PBA ban

The United States Court of Appeals has affirmed a lower court's invalidation of the federal ban on partial-birth abortions.  (Thanks to Howard Bashman).  It appears, by the way, that today's decision is the first post-Ayotte consideration of such a ban.  It will be interesting to see how the new Supreme Court -- with Justice Alito replacing Justice O'Connor -- responds to the Ninth Circuit's ruling, and applies both Ayotte and Stenberg.

UPDATE (from Bashman):

BREAKING NEWS -- U.S. Court of Appeals for the Second Circuit affirms district court decision holding Partial-Birth Abortion Ban Act of 2003 unconstitutional but requests additional briefing on the question of remedy: Today's ruling by a three-judge Second Circuit panel, in which each judge on the panel has issued a separate opinion, can be accessed here.

Senior Circuit Judge John O. Newman delivered the opinion of the court. Chief Judge John M. Walker, Jr. issued a concurring opinion expressing dissatisfaction with the U.S. Supreme Court's current abortion jurisprudence. Chief Judge Walker's concurrence states, "I write separately, however, to express certain concerns with the Supreme Court's abortion jurisprudence generally and with Stenberg in particular."

Circuit Judge Chester J. Straub dissented from today's ruling and would have held constitutional the ban on so-called "partial birth" abortion. In the dissenting opinion, he writes, "I find the current expansion of the right to terminate a pregnancy to cover a child in the process of being born morally, ethically, and legally unacceptable." For those who care about such things, Judge Straub was nominated to the Second Circuit by President William J. Clinton.


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