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April 18, 2007
PBA ban upheld
An initial post from Rob Vischer at MOJ.
Based on a quick read of the majority opinion: The Supreme Court's decision upholding the federal ban on partial-birth abortion seems a narrow, but important one. Justice Kennedy's opinion for the majority does not change the Court's basic position with respect to abortion, but it does make clear that the Court's precedents permit reasonable, careful regulations of abortion in order to promote the state's valid interest in protecting what Justice Kennedy called the government's '"interest in respect for life." The Justices distinguished, but did not overrule, their 2000 decision, Stenberg v. Carhart, which struck down Nebraska's differently worded partial-birth-abortion ban.
My take: Unlike the earlier decision, today's ruling respects the views of the overwhelming number of Americans -- pro-life and pro-choice alike -- who believe that partial-birth-abortion is a procedure that a decent and humane society need not permit. In this sense, the decision is consistent with the view that federal judges should not take it on themselves to remove controversial debates from the arena of democracy.
Posted by Amy Welborn | Permalink
Comments
A bright spot of good news in an otherwise horrific week
Posted by: AJP at Apr 18, 2007 12:07:21 PM
The five Catholic justices lined up on the correct side of this issue. (Maybe Abp Wuerl feels more justified in his approach now?)
As yet, no one seems to have noticed Justice Thomas's negative reference in his concurrence to the Commerce Clause, which seems to invite the inference that, had someone raised an objection to the PBA statute on Commerce Clause grounds (that it exceeded Congress's power under that clause, that is), he (and Justice Scalia, who concurred in this concurrence) would have perhaps ruled differently.
Posted by: Liam at Apr 18, 2007 12:29:03 PM
The concurrence also says that Roe has no basis in the Constitution. I was disappointed to see that neither Roberts nor Alito joined the concurrence.
Posted by: Dan at Apr 18, 2007 1:23:36 PM
Do you think that maybe Roberts and Alito were more interested in holding together a paper-thin majority to uphold the ban than in making a statement about Roe? Had they joined the concurrence there is the possibility that they might have lost Kennedy's vote.
Thomas and Scalia are already on record as opposing Roe by virtue of their votes in Casey. There was absolutely no reason for Roberts and Alito to tip their hand at this time, and thereby risk losing Kennedy's vote in the present case before the Court.
Unfortunately, Roe is much more likely to be chipped away at incrementally than overturned in one fell swoop. But this decision is a major step in the right direction.
Posted by: Jay Anderson at Apr 18, 2007 1:57:38 PM
Congrats to all pro-lifers who worked endless hours to elect a President who would nominate Justices who wouldn't mindless genuflect at the altar of Roe. This is your victory. For once, the unborn won before the Supreme Court. It will be a long fight, but future historians may note this case as the point when the legal battle over abortion began to turn.
Posted by: Donald R. McClarey at Apr 18, 2007 2:16:32 PM
My guess is that Roberts and Alito were probably concerned with the SCOTUS becoming more of a political play thing than it already is. Nobody really knows what they would do to Roe. What is that point in letting them know before the issue can really be addressed?
Posted by: Eric at Apr 18, 2007 2:25:37 PM
Eric and Jay Anderson, good points although I wouldn't think that Kennedy would withhold his vote over an unrelated concurence. I agree though that Alito and Roberts might not want to tip their hands given that doing so might have been viewed as provocative, particularly given that the validity of Roe was not a central issue in the case.
Posted by: Dan at Apr 18, 2007 2:37:51 PM
I think Jay and Eric are right. My suspicion is that neither Roberts nor Alito thinks Roe is good law, but they probably see no reason to prematurely weigh its shortcomings against stare decisis, especially when any criticism of Roe might spook Kennedy enough to alter the outcome of this case.
Thomas's dictum about the Commerce Clause is in keeping with his principled understanding of its legal efficacy. He hates Roe and deplores abortion, but does not view twisting the Constitution as an appropriate remedy.
And I enthusiastically join Donald's congratulations.
Posted by: Mike Petrik at Apr 18, 2007 2:43:39 PM
Jesus Christ is truly risen!
Posted by: Augustine at Apr 18, 2007 3:44:21 PM
If Kerry had won the election, we wouldn't be rejoicing about this today.
Posted by: Sr. Lorraine at Apr 18, 2007 4:16:32 PM
I find the political truimphalism a little off-putting. Yes, it was a good ruling, and yes, Roe is a horrendous decision that should be over-ruled, but is this the best you guys can come up with for electing Bush? After all this is a procedure that is seldom, if ever, used. Will this have any impact on the murder of the unborn in this country? I doubt it. In the meantime, the country and the world are in tatters over the policies of this president. Can you look the relatives of the hundreds of thousands (hundreds of thousands by the vest estimates) of dead Iraqis in the eye and tell them that this makes their sacrifice worthwhile? What about the torture victims? No, my friends, this is the legacy of your president, not the partial birth abortion ban.
Posted by: Morning's Minion at Apr 18, 2007 4:40:54 PM
The thing I've been most pleased with has been the language in the opinion itself, and the way Ruthie G. fumes about it in her dissent. Whoever Kennedy's clerk is, he or she did a great job inserting pro-life catch-words and phrases. Post-abortive syndrome was even mentioned! (Which, of course, Ginsburg points out by calling the reference "antiabortion shibboleth".) Also, that nurse's account of a PBA is a very effective way of laying out what really happens during this horrific procedure. Ruth even complains about how Kennedy's opinion uses the words "abortion doctors" to refer to these "specialty" physicians, and that Kennedy used the words "unborn child" (gasp!) to refer to the fetus.
If Ruth Ginsburg is mad, then I'm happy.
Posted by: Becky at Apr 18, 2007 4:53:39 PM
There are thousands of PBA's every year. This may be a fraction of dead Iraqis, but it does add up over time. More important, it is not only part of an incremental chipping away of Roe, but also part of an incremental chipping away of the American public's tolerant attitude toward abortion. The Supreme Court, like it or not, influences public opinion. When AOL asks whether "partial birth abortion" or "late term abortion" is the proper term, the response is equally divided -- but the response on whether today's decision is correct is lopsidedly in favor of the ruling. This is huge. When the accompanying AP story consoles supporters of abortion by reminding them that the "usual" late-term procedure of dismembering the fetus in utero (I'm paraphrasing here, but not exaggerating) is still in place -- that is huge, too. I can look the Iraqis in the eye and tell them that we didn't anticipate their disastrous situation -- but no one can look the dead babies in the eye. And next year there may be fewer of them, because we are in the process of shifting public opinion as well as the Court. Which no one can pretend would have happened under Gore or Kerry. Period.
Posted by: scotch meg at Apr 18, 2007 5:00:54 PM
"Will this have any impact on the murder of the unborn in this country?"
A little; more to the point it chips away at the idea that Roe is some sort of untouchable "super-duper precedent" in the words of pro-abort Senator Arlen Spectre. This is a first step in the process of destroying Roe and the judicially created right of abortion on demand. I can understand however why you downplay it since the candidates you support tend overwhelmingly to view abortion as a sacred right. Under Mr. Kerry, this decision would have been 6-3 in favor of barely disguised infanticide.
Posted by: Donald R. McClarey at Apr 18, 2007 5:29:30 PM
Justice Ginsburg seems to think that one of the central means by which a woman retains her autonomy is by having the right to have her unborn child partially delivered and then killed. Somehow the unavailability of this one method of abortion is a step in the direction of making them subservient beings.
Her opinion was joined by three other clowns.
These are the types of Justices that Morning Minion's preferred presential candidates would foist on the Nation.
No thanks.
Posted by: paul zummo at Apr 18, 2007 5:41:47 PM
Leave it to Morning's Minion to find the cloud in the silver lining. "Yeah, this is good news, but the important thing is that Bush still sucks!"
Posted by: Jordan Potter at Apr 18, 2007 5:50:34 PM
Surprise, surprise. Tony A thinks this decision is no big deal, and refers to commenters' thankful praise for a good outcome as "political triumphalism", which, of course, he finds "off-putting".
Apparently, he'd rather see this procedure remain legal (which a Kerry victory would have assured), than to see anyone he views as a political enemy enjoying a "victory" of any sort. Pathetic.
Posted by: Jay Anderson at Apr 18, 2007 5:55:07 PM
Thanks you Bush, THANK YOU!!
Posted by: Michelle at Apr 18, 2007 6:30:16 PM
Isn't Ginsburg on record advocating lowering the age of consent to 12 ? If the US had such a law, most of the 'abuse' uncovered in the past 20 years and costing the US RCC $1.5 billion and counting, would simply have been regarded as consentual acts between gay men and gay youths.
Posted by: Pas at Apr 18, 2007 6:59:01 PM
No, Jay, I don't want this procedure to stay legal (as I said very clearly, though you choose to deliberately ignore that). I applaud the decision. What I said is that I care about the death, bloodshed, and carnage that Bush's war has unleashed. I care about the victims of torture. We're not talking about the minimum wage here. We're talking about the core issues of the gospel of life. It's not about "Bush sucks".
Posted by: Morning's Minion at Apr 18, 2007 11:46:33 PM
Is MM really serious? Isn't this the first time a majority of supreme court justices voted in favor of a restriction on abortion? How many of the majority justices were nominated by a democratic president? First, MM lies by claiming that abortion rates drop only when democrats are sitting in the oval office, now the shrug of shoulders at a bunch of republican appointees supporting a restriction. MM, you are pathetic.
Posted by: ken at Apr 19, 2007 8:13:20 AM
"What I said is that I care about the death, bloodshed, and carnage that Bush's war has unleashed. I care about the victims of torture."
No, MM, what I'm reading from you is that you care MORE about those things than about the slaughter of unborn children, and that your politics is coloring your reaction to this good news. Otherwise why bring those other matters up in this thread at all?
That's how you're coming across anyway.
P.S. It's not "Bush's war." It's our nation's war. Responsibility for it cannot be ascribed just to the president and the rest of us get off scot-free.
Posted by: Jordan Potter at Apr 19, 2007 9:41:43 AM
Ken,
I've taken your lies long enough, but no more. The statistics show that, since 1980, the greatest decline in abortion rates took plzce during the Clinton administration. Whether Clinton had anything to do with this is open to debate, but the statistics are not. Frankly, I am sick of this Bush-era trend to simply deny statistics you don't like (Stephen Colbert says it perfectly: not truth, but "truthiness").
Posted by: Morning's Minion at Apr 19, 2007 11:25:40 AM
Jordan,
Why bring these matters up? Because they are central. The core issue is respect for the dignity of human life, and that is not restricted to abortion. You sound as if yesterday's ruling had a major impact on the number of abortions in this country. It did not. Its effect will be marginal. On the other hand, some here in this thread are lauding Bush over Kerry for this ruling. But if this is the only reward for voting for Bush, then that is a small consolidation for the death and destruction he has unleashed in the Middle East. As Catholics, they are our brothers and sisters as much as anybody in America.
Posted by: Morning's Minion at Apr 19, 2007 11:30:11 AM
MM said, "I've taken your lies long enough, but no more."
I challange you to cite one time I've lied when posting on Amy's blog.
MM then said, "The statistics show that, since 1980, the greatest decline in abortion rates took plzce during the Clinton administration. Whether Clinton had anything to do with this is open to debate, but the statistics are not. Frankly, I am sick of this Bush-era trend to simply deny statistics you don't like (Stephen Colbert says it perfectly: not truth, but "truthiness")."
I don't deny the statistic, I just doubt there is any correlation. To date, no one has even attempted to provide a plausible argument that I'm aware of.
MM, why is it that any time the topic is abortion, you shout, "IRAQ." Is it because you support people who support abortion? You claim the effects of this decision will be marginal; the front page of my Chicago Tribune says about 2,000 PBA's occur each year. Those, folks, are marginal lives to MM.
Posted by: ken at Apr 19, 2007 1:13:34 PM
