The Volokh Conspiracy - Sixth Strikes Down Michigan PBA Law:

Yesterday the U.S. Court of Appeals for the Sixth Circuit struck down a Michigan law banning "partial-birth abortion." According to the court's opinion, written by Judge Boyce Martin, the statute imposed an unconstitutional "undue burden" on a woman's right to an abortion under applicable Supreme Court precedent. State partial-birth abortion bans are consitutional, the court held, so long as they do not constitute an "undue burden." Michigan's statute, however, went too far because it could be construed to prohibit other procedures. As the Court concluded,

We certainly are reluctant to interfere with a statute that represents the will of the elected representatives of the people of Michigan, and do not do so lightly. If, however, the Michigan legislature had sought in good faith to enact a statute that prohibited the abortion procedures it deemed objectionable while complying with the limits imposed by the Constitution, it had plenty of guidance on how to proceed. The Supreme Court's decision in Stenberg predates the Michigan statute by five years. Further, in Taft, we fully upheld an Ohio statute pertaining to such procedures the year before the Michigan statute was passed. Michigan could have simply copied that statute word-for-word, and been virtually guaranteed a favorable result in the courts of this Circuit. It instead opted to use statutory language that pushed almost every boundary that the Supreme Court has imposed for these types of laws, and which have recently been reaffirmed in Gonzales. Because the statute cannot be squared in any way with these limitations, and the Attorney General's opinion is similarly inconsistent with the relevant court decisions and with the statute itself, the district court correctly determined that invalidation is the only available course.

Note that the court here is not simply relying on the recent Supreme Court decision upholding the federal PBA ban (Gonzales v. Carhart), but also the reasoning of the Supreme Court's earlier decision invalidating Nebraska's PBA ban (Stenberg v. Carhart). At least in the Sixth Circuit, this means that Stenberg survived the Supreme Court's more recent abortion decisions. The ACS Blog has more here.

	[Jonathan Adler, June 5, 2007 at 9:06am] Trackbacks Sixth Strikes Down Michigan PBA Law: Yesterday the U.S. Court of Appeals for the Sixth Circuit struck down a Michigan law banning "partial-birth abortion." According to the court's opinion, written by Judge Boyce Martin, the statute imposed an unconstitutional "undue burden" on a woman's right to an abortion under applicable Supreme Court precedent. State partial-birth abortion bans are consitutional, the court held, so long as they do not constitute an "undue burden." Michigan's statute, however, went too far because it could be construed to prohibit other procedures. As the Court concluded, We certainly are reluctant to interfere with a statute that represents the will of the elected representatives of the people of Michigan, and do not do so lightly. If, however, the Michigan legislature had sought in good faith to enact a statute that prohibited the abortion procedures it deemed objectionable while complying with the limits imposed by the Constitution, it had plenty of guidance on how to proceed. The Supreme Court's decision in Stenberg predates the Michigan statute by five years. Further, in Taft, we fully upheld an Ohio statute pertaining to such procedures the year before the Michigan statute was passed. Michigan could have simply copied that statute word-for-word, and been virtually guaranteed a favorable result in the courts of this Circuit. It instead opted to use statutory language that pushed almost every boundary that the Supreme Court has imposed for these types of laws, and which have recently been reaffirmed in Gonzales. Because the statute cannot be squared in any way with these limitations, and the Attorney General's opinion is similarly inconsistent with the relevant court decisions and with the statute itself, the district court correctly determined that invalidation is the only available course. Note that the court here is not simply relying on the recent Supreme Court decision upholding the federal PBA ban (Gonzales v. Carhart), but also the reasoning of the Supreme Court's earlier decision invalidating Nebraska's PBA ban (Stenberg v. Carhart). At least in the Sixth Circuit, this means that Stenberg survived the Supreme Court's more recent abortion decisions. The ACS Blog has more here.