this goes in the “who couldn’t see that coming?” department…

Supreme Court Reopens Abortion Issue on Alito’s First Day

WASHINGTON, Feb. 21 — The Supreme Court, at full strength with Justice Samuel A. Alito Jr. on the bench for the first time, opened the next chapter in its long-running confrontation with abortion today by agreeing to decide whether the first federal ban on a method of abortion is constitutional.

The court accepted, for argument next fall, the Bush administration’s appeal of a decision invalidating the Partial-Birth Abortion Ban Act of 2003. The law makes it a crime for a doctor to perform an abortion during which a portion of the fetus, either the “entire fetal head” or “any part of the fetal trunk past the navel,” is outside the woman’s uterus at the time the fetus is killed.

While the law’s supporters maintain that this technique is used only late in pregnancy, and that the law therefore does not present an obstacle to most abortions, abortion-rights advocates say the statute’s description applies to procedures used to terminate pregnancies as early as 12 or 13 weeks.

The law makes an exception for instances in which the banned technique is necessary to save a pregnant woman’s life, but not for preservation of her health, as the Supreme Court found necessary six years ago when it overturned a similar law from Nebraska.

In omitting a health exception, the federal law presents a direct threat to that precedent. In the federal statute, Congress included a “finding” that “partial-birth abortion is never medically indicated to preserve the health of the mother” and that “there is no credible medical evidence that partial-birth abortions are safe or are safer than other abortion procedures.”

The four doctors who went to Federal District Court in Lincoln, Neb., to challenge the federal law, including Dr. Leroy Carhart, who had brought the earlier challenge to the Nebraska state law, disputed the Congressional findings. They said the method was safer under some conditions and could preserve some women’s fertility by avoiding such complications as punctures from bone fragments inside the uterus.

The trial judge, Richard G. Kopf, who had earlier found the Nebraska law unconstitutional, said the plaintiffs had demonstrated that the Congressional findings were “unreasonable.” He declared the federal law unconstitutional in a 269-page opinion, issued in September 2004. The United States Court of Appeals for the Eighth Circuit, in St. Louis, upheld that decision last July, leading to the administration’s Supreme Court appeal, Gonzales v. Carhart, No. 05-380.

Last month, two other federal appeals courts, the Second Circuit in New York and the Ninth Circuit in San Francisco, declared the statute unconstitutional in separate lawsuits. All three courts issued injunctions barring enforcement of the law.

Ever since Roe v. Wade and its companion case, Doe v. Bolton, in 1973, the court has required exceptions for health as well as life in any regulation of abortion. But the vote in the Nebraska case, Stenberg v. Carhart, was 5 to 4, with Justice Sandra Day O’Connor in the majority. It is highly likely, therefore, that her successor, Justice Alito, will be in the position to cast the deciding vote. The dissenters in the Nebraska case were Justices Antonin Scalia, Clarence Thomas and Anthony M. Kennedy, along with Chief Justice William H. Rehnquist, who has since been replaced by Chief Justice John G. Roberts Jr.

After the court’s announcement this morning, groups on both sides of the abortion debate tried to attach some significance to the decision to accept the case. In fact, it would have been highly unusual for the court to turn down the appeal. A lower court’s invalidation of a federal statute has an almost automatic claim on the justices’ attention, even those justices who may view the decision as correct or those who may not necessarily agree in this instance with the Bush administration’s description of the case as “extraordinarily important” and requiring immediate review.

The court had the administration’s appeal under review since early January. It may have deferred action as a courtesy to Justice Alito, who participated in his first closed-door conference with the other justices last Friday.

Or, equally likely, the justices set the case aside while they finished work on a New Hampshire abortion case that also raised a question about a medical exception to an abortion regulation, in that instance a requirement that a teenage girl notify a parent and then wait 48 hours before obtaining an abortion.

In what proved to be Justice O’Connor’s final opinion before retirement, that case, Ayotte v. Planned Parenthood of Northern New England, was decided on Jan. 18. The unanimous opinion restated the court’s longstanding insistence on an exception for medical emergencies but, in its list of precedents, pointedly omitted reference to the Nebraska case from six years ago, its most recent treatment of the subject.

In the Bush administration’s brief in the new case, Solicitor General Paul D. Clement said the appeals court should have given “substantial deference” to the Congressional findings on the lack of need for a health exception. Such deference was not at issue in the Supreme Court’s earlier case, he said, because that case concerned a state rather than federal law.

Representing the plaintiffs, who include Drs. William G. Fitzhugh, William H. Knorr, and Jill L. Vibhakar, in addition to Dr. Carhart, the Center for Reproductive Rights told the justices in its brief that the Congressional findings were not entitled to the deference that courts usually apply when evaluating legislation.

“The facts at issue here involve the current state of medicine, physicians’ testimony about patients they have cared for, medical conditions they have treated and the impact of abortion techniques on the health of these patients,” the brief said, adding that Congress does not have “a particular expertise in the area of medicine, as it does in the area of nationwide economic regulatory schemes.”

The organization, based in Manhattan, was known as the Center for Reproductive Law and Policy when it represented Dr. Carhart in the earlier case.

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and this one goes in the “if alito had been presiding over this case, it would have come out entirely differently” department… 8/

Court upholds church use of hallucinogenic tea
Justices unanimously rule that N.M. congregation can drink illegal drug
Feb. 21, 2006

WASHINGTON – The Supreme Court ruled unanimously Tuesday that a small congregation in New Mexico may use hallucinogenic tea as part of a four-hour ritual intended to connect with God.

Justices, in their first religious freedom decision under Chief Justice John Roberts, moved decisively to keep the government out of a church’s religious practice. Federal drug agents should have been barred from confiscating the hoasca tea of the Brazil-based church, Roberts wrote in the decision.

The tea, which contains an illegal drug known as DMT, is considered sacred to members of O Centro Espirita Beneficiente Uniao do Vegetal, which has a blend of Christian beliefs and South American traditions. Members believe they can understand God only by drinking the tea, which is consumed twice a month at four-hour ceremonies.

New Justice Samuel Alito did not take part in the case, which was argued last fall before Justice Sandra Day O’Connor before her retirement. Alito was on the bench for the first time on Tuesday.

Roberts said that the Bush administration had not met its burden under a federal religious freedom law to show that it could ban “the sect’s sincere religious practice.”

The chief justice had also been skeptical of the government’s position in the case last fall, suggesting that the administration was demanding too much, a “zero tolerance approach.”

The Bush administration had argued that the drug in the tea not only violates a federal narcotics law, but a treaty in which the United States promised to block the importation of drugs including dimethyltryptamine, also known as DMT.

“The government did not even submit evidence addressing the international consequences of granting an exemption for the (church),” Roberts wrote.

The justices sent the case back to a federal appeals court, which could consider more evidence.

Roberts, writing his second opinion since joining the court, said that religious freedom cases can be difficult “but Congress has determined that courts should strike sensible balances.”

The case is Gonzales v. O Centro Espirita Beneficiente Uniao Do Vegetal, 04-1084.

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Earth Hurtles Toward 6.5 Billion
By Joanna Glasner
Feb, 21, 2006

The planet’s population is projected to reach 6.5 billion at 7:16 p.m. EST Saturday, according to the U.S. Census Bureau and its World Population Clock.

Thomas Malthus, the 18th-century thinker who famously predicted the human population would outrun its food supply, would be astounded.

Back in 1798, when Malthus penned his classic An Essay on the Principle of Population, barely a billion Homo sapiens roamed the planet. Today, Earth’s population teeters on the brink of a new milestone: 6.5 billion living, breathing humans.

“Malthus would be astonished not only at the numbers of people, but at the real prosperity of about a fifth of them and the average prosperity of most of them,” said demographer Joel Cohen, a professor of populations at Rockefeller and Columbia universities. “He wouldn’t be surprised at the abject poverty of the lowest quarter or third.”

The clock, which operates continuously, estimates that each second 4.1 people are born and 1.8 people die. The clock figures are estimates, subject to error, given the difficulties of maintaining an accurate global population count.

However, the key concept — that population levels are growing, but at a slower rate than in the past few decades — reflects the consensus view of demographers. The current growth of world population, estimated by Cohen at 1.1 percent a year, has slowed significantly from its peak of 2.1 percent annual growth between 1965 and 1970.

“That’s a phenomenal decline,” said Cohen, who probed the question of whether population growth is sustainable in his book, How Many People Can Earth Support?. (The short answer: It depends.)

Today, a large portion of the world’s population lives in nations that are at sub-replacement fertility, meaning the average woman has fewer than two children in her lifetime. Countries in this camp include former members of the Soviet Union, Japan and most of Europe.

Demographers attribute the slowing rate of global population growth in part to more-widespread availability of birth control and to people in developed nations choosing to have fewer children. But low-birthrate countries are counterbalanced by nations like Yemen, where the average woman has seven children in her lifetime.

The highest population growth rates emanate disproportionately from the poorest regions of Africa, the Middle East and the Indian subcontinent.

U.S. population is also growing at a steady clip, augmented by high numbers of immigrants. It is projected to hit 300 million later this year. Earth’s population is expected to reach 7 billion in 2012, according to the Census Bureau.

Carl Haub, a demographer with the Population Reference Bureau, sees urbanization contributing to slowing growth, because urban areas typically have lower birthrates than rural areas. In 1950, less than 30 percent of people lived in areas defined as urban. Next year, the United Nations projects that more than half the world’s population will be urban.

As population growth marches forward, debate continues in academia — as it has since Malthus’ time — over how many people the Earth can realistically support.

Certainly individual countries, such as Bangladesh or Rwanda, can be characterized as overpopulated, said Haub. But in other places, such as India, it’s harder to determine the extent to which overpopulation — rather than other social and economic factors — contributes to poverty.

Some turn to mathematical models for estimating maximum sustainable population levels.

One metric modeled on the Census Bureau’s population clock compares world population to the finite supply of arable land.

For his part, Cohen estimates that if we want to support individuals indefinitely — allotting each person 3,500 calories per day from wheat and 247,000 gallons per year of fresh water — the planet has room for only about 5 billion people.

But such formulas are subject to tinkering. Changes in agricultural practices, more efficient water-desalination technologies and a host of other factors can increase the number of people the planet can support. Shifts in behavior — such as acceptance of new food sources that are cheap to produce — can have a similar effect, noted Cohen.

“What most of this commentary neglects is the role of culture in defining wheat as food but not, let’s say, cultured single-cell algae,” he said.

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