Thursday, August 26, 2004

Judicial Legislation -- Example 9,999,999

Think what you will about the issue of abortion, but how can anyone say that this isn't a judicial usurpation of legislative prerogative?
Judge Stops Partial-Birth Abortion Ban

By LARRY NEUMEISTER, Associated Press Writer

NEW YORK - In a highly anticipated ruling, a federal judge found the Partial-Birth Abortion Ban Act unconstitutional Thursday because it does not include a health exception.

U.S. District Judge Richard C. Casey in Manhattan said the Supreme Court has made it clear that a law that prohibits the performance of a particular abortion procedure must include an exception to preserve a woman's life and health....

The law, signed in November, represented the first substantial federal legislation limiting a woman's right to choose an abortion. Abortion rights activists said it conflicted with three decades of Supreme Court precedent.

It banned a procedure that is known to doctors as intact dilation and extraction, but is called "partial-birth abortion" by abortion foes. During the procedure, the fetus is partially removed from the womb, and its skull is punctured or crushed.

The judge challenged the conclusion by Congress that there is no significant body of medical opinion that the procedure has safety advantages for women...[emphasis added].
I would recant my position on judicial supremacy (here and here), if the alternative weren't legal chaos. On the other hand, rulings like Judge Casey's suggest that chaos is at hand.