[SEE UPDATE BELOW] Senate Majority Leader Harry Reid (D-NV) was among those who denounced yesterday's Supreme Court ruling upholding the Federal Partial Birth Abortion Act. Commenting on the decision, Reid said "A lot of us wish that Alito weren't there and O'Connor were there," indicating his desire that there has been a fifth vote to invalidate the statute, as Justice O'Connor had provided the fifth vote to invalidate Nebraska's partial-birth abortion ban in Stenberg v. Carhart.
What is curious about Reid's statement, as NPR and some news outlets have noted, is not Reid's criticism of Alito — Reid opposed Alito's confirmation — but the fact that Reid supported, and voted for, the federal statute upheld in yesterday's decision. Reid was one of 17 Senate Democrats voting in favor of the billin 2003. Reid also voted in favor of a ban on partial-birth abortion in 1999 (see here) and , as indicated in this "Meet the Press" interview, Reid was one of only two Democratic Senators to vote against a resolution reaffirming Senate support for the holding of Roe v. Wade.
So, despite his repeated support of legislative restrictions on abortion, Reid's latest comment suggests that he believes the Supreme Court's decision was regrettable and wrongly decided, and that a law that he supported is unconstitutional. To me, the latter is of greater concern. Call me old fashioned, but I believe that if a member of the Senate believes a law is unconstitutional, he or she should vote against it. While I believe it is permissible to vote in favor of a bill that one believes the Supreme Court will invalidate (a Senator need not agree with the rulings of the Supreme Court), I do not believe that a Senator should vote in favor of a bill the he or she believes should be struck down by the Supreme Court, and it is more than a minor inconsistency when a Senator laments a Supreme Court decision upholding a law which that Senator supported. Note that I don't think Senator Reid can argue that he likes the law as a matter of policy, but believes it to be unconstitutional as a) he is sill obligated to vote against any bill that he believes to be unconstitutional, and b) his refusal to vote in support of Roe indicates that he disagrees with the Supreme Court's decisions holding most abortion restrictions unconstitutional.
Alas, Senator Reid is hardly alone in this regard. It has become almost routine for legislators of both parties to disclaim any serious evaluation of the constitutionality of their enactments and await court evaluation of their efforts. This is regrettable. Particularly if members of Congress desire or expect some degree of judicial deference to legislative enactments, they should take their oaths to uphold the constitution more seriously, and refuse to support given legislation when they conclude, based upon the exercise fo their own independent judgment, that a bill is unconstitutional. So, if that is how Senator Reid felt about the federal partial birth abortion act, he should have voted against it.
UPDATE: A spokesperson from Senator Reid's office released a statement that makes clear Reid misspoke [or was misinterpreted] when he commented on the Supreme Court's ruling.
Senator Reid opposes abortion except in the cases of rape, incest, and when the life of a mother is at risk. Consistent with this position, Senator Reid supported the Partial Birth Abortion Ban and supports the Supreme Court’s decision yesterday. However, Senator Reid continues to disagree with Chief Justice Roberts and Justice Alito on many issues and that is why he opposed their confirmation.Based upon this clarification of his statement, it does not indicate that he voted for a law that he believed to be unconstitutional.
Related Posts (on one page):
- Senator Reid Clarifies Position on PBA Ruling:
- Senator Reid on PBA Ruling:
Reid is an elected politician like everyone else in those two branches, so is it any wonder that he shares the same attitude?
Strictly speaking, this statement from Reid does not say he wanted the act overturned.
As a pro-life Democrat, most of whose colleagues are pro-choice and opposed the act, Reid is walking a fine line. So he parses his words very carefully. He does wish Alito weren't on the court. IIRC, Reid voted against his nomination.
I think he probably just misspoke and got the Justices backwards. That'd make a lot more sense.
The people I'm most upset at by this are the Congress members who thought it was a bad law but still voted for the ban in order to get re-elected, thinking that its lack of a health exception would mean that it would surely be overturned. Do your f---ing job, Congress. Don't hope that the courts will come along and clean up your messes. You can't count on it.
(Censored for Volokhability.) Shame on Reid and on the other Democratic senators who voted for this to score constituents' points while hoping it would be overruled.
About 5 years ago I heard Scalia say this almost verbatim. In that context he was talking about severability clauses which allowed parts of a statute to be still in force even if other parts are struck down.
In other words, it would be coherent to think that the statute is constitutionally defensible on some narrow ground, but that as between striking it down (the probable result were SO'C still on the Court) and upholding it pursuant to the opinion AMK wrote, the former is preferrable.
Did the good Senator actually intend to draw that somewhat subtle distinction? I have no idea.
Looks like you need to go back and read your case law. 3rd trimester abortion procedures? You've got to be joking. Nice effort at shock.
I'd like to see a little more discussion regarding the constitutional responsibility of Congress, the President, and the judiciary. From the NYT editorial staff, I'd like to know a lot more about their their theory of judicial review.
It's still pretty funny/sad how Congress doesn't seem to care about its own duty to uphold the Constitution.
My understanding of England is that it IS up to the legislature to uphold their rights. How that works is beyond me.
The argument runs something like this. The PBA banned a procedure (ID&X, I believe) - a ban which was upheld by SCOTUS largely because there is another abortion procedure (D&E, I believe) that can be used instead, and because ID&X is more gruesome.
However, the ID&X procedure is often quicker, and necessitates fewer insertions of medical instruments into the woman's body. Generally, faster medical procedures carry with them less risk of infection or complication, and the fewer instances of medical instruments entering the woman's body alleviates the risk somewhat of puncturing the womb or other complications.
This reduced risk of complications of surgery by reducing the time of surgery and reducing the possibility of puncturing the womb is why some folks believe ID&X to be preferable in some cases because it may carry fewer health risks.
I believe there are other cases as well, but I'm not sure what they are.
If that kind of increase isn't enough and 'certain death' or close to it is the only thing that qualifies, then this is a truly terrible law that pro-life people should be ashamed of as this will affect them too if they have the horrible misfortune of having a fetus with hydrocephalus.
But I doubt the 'life of the mother' exception is really that extreme -- can someone confirm?
I don't think this law per se will have a great effect - my prediction is that no one will ever get prosecuted under this law, and that it's more symbolic because this procedure isn't used much anyways as compared to other methods. The decision, on the other hand, could start the ball rolling to a reversal of the Roe/Casey line if the GOP keeps the White House or if one of the five currently supporting Roe/Casey leaves the Court.
Shake-N-Bake, I'd like you to meet South Dakota. South Dakota, meet Shake-N-Bake. Later on I will introduce you to Kansas. I hear she brought her Senator....
My understanding is that 'almost certain death' is, in fact, the standard. I'm willing to be corrected, but I've always seen it presented such that techniques that reduce risk are simply for 'health', unless that risk is extreme.
I did some more poking around trying to find information on this, and while I didn't find anything useful, I found that ID&E is also recommended as being safer in cases where the woman has high blood pressure or certain kinds of cancers, but the references didn't include details on why.
I suspect also that no one will get prosecuted, but that's because doctors are risk-averse. Nobody will perform a procedure that might get them prosecuted, even when it increases risk to a patient. This will result in greatly increased health risks to the (admittedly small) percentage of women that need it.
Incidentally, the decision as I understand it actually reaffirmed Roe, as the majority reasoning was based in part on the claim that the bill did not prevent access to abortion, so I don't think it will be used as a stepping stone to overturn Roe. It is an indication that the court will be attempting to hollow it out as much as possible, however.
Yeah, ya think? This is all outrage in search of an opportunity. I'm sure that If Reid indicated his personal iapproval of the ruling, I'm sure this post would be about "signs of revolt within the democratic party" or some such.
It's obvious that he misspoke. Reid, a Democrat, who lead the opposition to Alito in the Senate, suddenly would prefer him to O'Connor in every case except this one, upholding a restriction on abortion that the pro-life senator himself voted for?
Now try reading this version:
I do agree though that it's disgraceful when a Congressman or President agrees to pass a law that they believe is unconstitutional.
The problem with your purported contextualization of the quote is that it's unsupported by a link, and a google news search for the alleged "full quote" returns only two hits, one from something called "Earth Times" and another from an outlet in Austria. Which really has to make you wonder about the accuracy of it. If that does turn out to be the context, then you may well be right, but what reason do we have to believe that that is the context? What's the reliable (or MSM, even) source?
I heard him say it on television...
http://www.wrcbtv.com/news/index.cfm?sid=7718
Click the "Play Video" link to see him say it for yourself.
However, this is the only place that you'll read about it... :>)
It's not so much that they would be worried about being prosecuted as they would about being sued. I'm certain malpractice insurance wouldn't cover an illigal procedure.
Incidentally, another portion of that clip is hilarious. A reporter asks the White House spokesperson whether the ideological shift on the court was responsible for the decision and, barely keeping a straight face, she says:
"I think that uh, the Supreme Court is, umm.... the ... they, they decide and uh, we all follow"
Don't get me wrong, I think that Roe us to blame for the Court to being embroiled in political decisionmaking, but it is still funny to see conservatives, now that they have a Court decision they like on the issue, backpedaling from the fact that the abortion jurisprudence is pure politics.
He doesn't specify that he didn't like the outcome in *this* case - I'm fairly certain he's happy with this result, but upset by the court in general - and this ruling gives him the perfect opportunity, as a Dem, to say something about it.
Executive summary: Reid has a strong pro-life record.
WASHINGTON, July 10, 1832.
To the Senate.
The bill "to modify and continue" the act entitled "An act to incorporate the subscribers to the Bank of the United States" was presented to me on the 4th July instant. Having considered it with that solemn regard to the principles of the Constitution which the day was calculated to inspire, and come to the conclusion that it ought not to become a law, I herewith return it to the Senate, in which it originated, with my objections.
A bank of the United States is in many respects convenient for the Government and useful to the people. Entertaining this opinion, and deeply impressed with the belief that some of the powers and privileges possessed by the existing bank are unauthorized by the Constitution, subversive of the rights of the States, and dangerous to the liberties of the people, I felt it my duty at an early period of my Administration to call the attention of Congress to the practicability of organizing an institution combining all its advantages and obviating these objections. I sincerely regret that in the act before me I can perceive none of those modifications of the bank charter which are necessary, in my opinion, to make it compatible with justice, with sound policy, or with the Constitution of our country.
* * *
If the opinion of the Supreme Court covered the whole ground of this act, it ought not to control the coordinate authorities of this Government. The Congress, the Executive, and the Court must each for itself be guided by its own opinion of the Constitution. Each public officer who takes an oath to support the Constitution swears that he will support it as he understands it, and not as it is understood by others. It is as much the duty of the House of Representatives, of the Senate, and of the President to decide upon the constitutionality of any bill or resolution which may be presented to them for passage or approval as it is of the supreme judges when it may be brought before them for judicial decision. The opinion of the judges has no more authority over Congress than the opinion of Congress has over the judges, and on that point the President is independent of both. The authority of the Supreme Court must not, therefore, be permitted to control the Congress or the Executive when acting in their legislative capacities, but to have only such influence as the force of their reasoning may deserve.
* * *
I have now done my duty to my country. If sustained by my fellow citizens, I shall be grateful and happy; if not, I shall find in the motives which impel me ample grounds for contentment and peace. In the difficulties which surround us and the dangers which threaten our institutions there is cause for neither dismay nor alarm. For relief and deliverance let us firmly rely on that kind Providence which I am sure watches with peculiar care over the destinies of our Republic, and on the intelligence and wisdom of our countrymen. Through His abundant goodness and their patriotic devotion our liberty and Union will be preserved.
ANDREW JACKSON.
Senator Reid did not misspeak. He said exactly what he meant: "a lot of us," -- i.e., Senate Democrats, for whom he is authorized to speak -- disagree with the decision. Professor Adler and others interepreted him to mean "a lot of us" meaning Senate Democrats, including himself -- which he never said. On the basis of that interpretation, they accused him of hypocrisy. So now he clarified what is perfectly consistent with what he said in the first place. And Professor Adler takes it as an admission that he misspoke! It would be a nice spin move coming from a politician. I've come to expect more from Professor Adler.
Perhaps you are unfamiliar with the word "us". It means a group of people INCLUDING THE SPEAKER HIMSELF. If he meant a group of people EXCLUDING THE SPEAKER, the appropriate word is "them".