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Any Attorney's Here---your oppinion please.

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OHdem10 Donating Member (1000+ posts) Send PM | Profile | Ignore Fri May-27-11 11:02 AM
Original message
Any Attorney's Here---your oppinion please.
Last night on Maddow Show, MSNBC, Rachel reported that
the Louisiana Legislature is about to pass a law which
will Ban ALL Abortions. Included in the law, a doctor
who performs an Abortion in that state can receive 5-15 years
in prison.

1. Can you criminalize Abortion but only punish the Doctor?

2. How does this law work in relation to Federal Law Roe V Wade?
If a Doctor is charged, does Roe V Wade in any way protect
him/her??

Thanks.

BTW this type law is going through other states, I forget which.
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treestar Donating Member (1000+ posts) Send PM | Profile | Ignore Fri May-27-11 11:05 AM
Response to Original message
1. Blatantly unconstitutional
Right wing legislatures pass these laws to try to get a platform to challenge Roe v. Wade.

Punishing the doctor only - another ground that could be used to challenge it.
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Lone_Star_Dem Donating Member (1000+ posts) Send PM | Profile | Ignore Fri May-27-11 11:10 AM
Response to Original message
2. Not an attorney, but my opinion is they're trying to get it back before the SC
Why? I'm not sure. It won't do them much good since I'm pretty sure Roe v Wade has enough Justices on record supporting it of those currently seated.

That's generally what the plan is in such legislation though. They want to keep bringing it up before the courts in hopes of someday getting it reversed. :shrug:
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blondeatlast Donating Member (1000+ posts) Send PM | Profile | Ignore Fri May-27-11 12:59 PM
Response to Reply #2
6. "That's generally the plan in such legislation...." You can almost smell it when it comes before
yoru state legislature--you got it.
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former9thward Donating Member (1000+ posts) Send PM | Profile | Ignore Fri May-27-11 11:20 AM
Response to Original message
3. If it was legal to criminalize abortion then a legislature
could write the statute to only punish the doctor. There are many statutes which only punish one side of an illegal act. This is an attempt to challenge Roe and hope it gets reversed.
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ChoppinBroccoli Donating Member (1000+ posts) Send PM | Profile | Ignore Fri May-27-11 12:05 PM
Response to Original message
4. This Law Is Being Written Specifically So The First Doctor Busted Will Take It Up
Notice how they're singling out the doctors? Wanna know why? Because in order to get to the United States Supreme Court, you first have to be convicted in your local court, appeal, make it through the Appellate Court, and THEN take it up on cert. to the Supreme Court (often you'd even have an additional stop in there at the State Supreme Court level too). Do you think average Jane on the street, who's having an abortion, is going to have enough money to pursue a claim all the way up to the Supreme Court? No way. But who would? A DOCTOR would.

More to the point of your question, can a State Legislature pass a law like this? Yes, they can pass anything they want. If it's unconstitutional, the Courts will quickly overturn it. So yes, I agree with the earlier posters that this is a ridiculously transparent attempt to get abortion in front of the Supreme Court again in the hope that they'll overturn Roe v. Wade. My guess is that they won't, even if they accept the cert. (and even THAT'S not a guarantee). Let's face it, the abortion issue has been decided, and I would guess that the fact pattern in whatever case goes up under this new law is going to be factually almost identical to Roe. Generally speaking, the Court won't even agree to hear cases where an issue has already been decided and the fact patterns are similar. But in this case, it will depend on the makeup of the Court and how blatantly they want to make their agenda known.

This is by no means a slam dunk. The new law, if it even passes, won't go into effect for another year so. It will then take another year or more to find the first doctor to charge. THAT case will drag through the State Court for over a year. Then there's the Appeals process. My best guess is that even if all the pieces fall into place, this won't even make it to the Supreme Court for probably 3-5 years or more. By then, the Court could look completely different. Hopefully Scalia will be off the bench by then, and maybe another Justice or two, and their replacements will be Obama appointees, which means the 5-4 conservative advantage will be gone.
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ohnoyoudidnt Donating Member (250 posts) Send PM | Profile | Ignore Fri May-27-11 01:15 PM
Response to Reply #4
7. Why would it have to go that far?
Couldn't it be challenged as soon as it is passed without someone being charged first?

The Supreme Court just backed Arizona's immigration law without there being a criminal case.
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hifiguy Donating Member (1000+ posts) Send PM | Profile | Ignore Fri May-27-11 01:20 PM
Response to Reply #4
8. Where it goes depends on where it is challenged
If the statute were challenged in federal court, it would first be heard in federal district court, then taken up to the Circuit Court of Appeals, then the SCOTUS. State courts, including the state supreme court, would not be involved. Likely it would be enjoined from being enforced on the basis of Roe - district court judges, even federal ones, usually don't go out on a limb this weak.

Otherwise, your analysis and prediction is, IMO, spot on.
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ChoppinBroccoli Donating Member (1000+ posts) Send PM | Profile | Ignore Fri May-27-11 01:55 PM
Response to Reply #8
10. You're Right
But I'm guessing that since they're making the performing of an abortion a crime, the first court contact will be the initial criminal charges against the doctor, and those would be heard in the county Common Pleas Court (assuming this new "crime" is going to be classified as a felony, and I think I read above that it is). If that's the case, it will have to weave its way through the State Court system before it can go up to the U.S. Supreme Court.
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librechik Donating Member (1000+ posts) Send PM | Profile | Ignore Fri May-27-11 01:23 PM
Response to Reply #4
9. do I really trust Obama to do that?
oh god i don't know. But I can hope.
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alsame Donating Member (1000+ posts) Send PM | Profile | Ignore Fri May-27-11 12:32 PM
Response to Original message
5. Thanks for asking - I was also confused about how a state could
make laws that appear to violate a federal law. And thanks for the answers everyone.
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