Sure, it’s great news that two circuit courts ruled yesterday that the federal "partial-birth" abortion ban is unconstitutional. But nobody was really surprised, considering that every court to consider the federal abortion ban so far has ruled that the act is overly broad. And, in fact, Congress intended it that way, to force the court to reconsider its ruling in the 2000 case, Stenberg v. Carhart, which ruled state-level "partial-birth" abortion bans unconstitutional.

SCOTUSblog explains what all of this means.

The 64-page ruling by the Ninth Circuit found the federal Act unconstitutional for three reasons, summarizing them this way: "First, the Act lacks the constitutionally required health exception. Second, it imposes an undue burden on women's ability to obtain pre-viability abortions. Third, it is unconstitutionally vague, depriving physicians of fair notice of what it prohibits and encouraging arbitrary enforcement."

So while the circuit court decided the federal abortion ban is clearly unconstitutional, it failed to offer a remedy. Here's where the Supreme Court's non-decision in Ayotte comes into play:

...the Circuit Court said it was guided by the three principles the Supreme Court spelled out in Ayotte on the general issue of remedying an unconstitutional abortion restriction: strike down no more of the law than necessary, avoid rewriting the law to make it constitutional, and remain confined by the intent of the legislature in passing the law. Applying those principles, it said, a permanent injunction against enforcement of the 2003 Act "is the only permissible remedy."

The Ninth Circuit couldn't propose more specific modifications to the law (like an inclusion of a health exception) because it didn't want to step on Congress' toes.

Congress left out a health exception, it found, "in a deliberate effort to persuade" the Supreme Court to overturn its finding in Stenberg that a "partial-birth" ban requires a health exception. "Congress was advised repeatedly that if it passed an abortion ban without a health exception, the statute would be declared unconstitutional," yet it refused to amend the bill to add such an exception, the Court said. Leaving out the exception, it added, was "a critical component" of the measure. Thus, the appeals court said, a court could not properly add a health exception to the law.

So Congress knew what it was doing when it passed the federal ban without a health exception.

"It is impossible to say," it added, that Congress would have preferred the Act with a health exeption tacked onto it, to no law at all. In situations where legislators cannot get their full legislative goal, legislative leaders may prefer to drop the bill entirely. Dropping a proposal "may be the best way to gain adherents to the cause, inspire the faithful, raise funds, and possibly even generate support for a constitutional amendment," the Court said.

Congress, the panel went on, enacted "an overly broad ban," then left it to the courts to sort out which parts might be valid. That is legislative, not judicial, work, it said. The necessary cutback of the law, it added, would lead to "a drastically more limited" law than the one Congress did pass. "When a 'narrow' remedy would substantially change the very nature of a statute, adopting that remedy exceeds the proper judicial role," it concluded. Congress' intent, it repeated, was to refuse to follow the roadmap laid out in the Supreme Court's 2000 decision in Stenberg.

SCOTUSblog points out that the Second Circuit's decision is even scarier:

The Second Circuit decision on the new Act found it unconstitutional only for lack of a health exception. It did not rule on the separate challenges on whether the law imposes an undue burden on women's abortion right and whether the law was unconstitutionally vague. Whether it will need to rule on those, it said, "will likely depend on our decision as to the appropriate remedy, because invalidation of the statute in its entirety would make it unnecessary" to consider those other claims. ...

That separate opinion virtually lays out a roadmap the Supreme Court might follow if a majority now wishes to overturn the Stenberg decision, and to strike off in an entirely new direction on abortion jurisprudence.

And my friend Erin pointed me to this appalling quote from Judge Straub in the Second Circuit opinion:

"I find the current expansion of the right to terminate a pregnancy to cover a child in the process of being born morally, ethically, and legally unaccepable."

Talk about your activist judges.

Now the Supreme Court is likely to hear the federal abortion ban cases. Here's where Alito's addition to the bench means real trouble.

With a new Justice, Samuel A. Alito, Jr., on the Court, a majority might be assembled to reexamine that core question, and thus to revisit the 2000 decision in Stenberg v. Carhart striking down a state-level "partial-birth" ban.

And we all know Alito’s record on choice. Shudder.