Tuesday, January 31, 2006


The Ninth Circuit...post Ayotte

Over at SCOTUSblog, they’ve begun discussing today's Ninth Circuit Decision which is the first lower court decision to reference the Supreme Court’s recent Ayotte decision. Anyone familiar with the legal reasoning coming out of the Ninth Circuit over the years may be surprised to read that they apparently now have serious reservations about intruding on the legislative prerogative:

“Even if we could draft a remedy that sufficiently restricted the scope of the statute (which we believe we could not properly do consistent with our limited judicial role), such a narrowing construction would serve not to cure an error but to reverse a political judgment that Congress expressly made.”

Reluctantly, then, the Ninth Circuit states: “[i]n light of Ayotte, we conclude that the only appropriate remedy is to enjoin enforcement of the Act (Partial-Birth Abortion Ban Act of 2003) and we now affirm the district court’s grant of a permanent injunction.”

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