And...didn't we know this was coming?
At Mirror of Justice, Robert Araujo, SJ comments, focusing on the NYTimes editorial in response to Carhart.
Proponents of abortion will, of course, scream to the heavens that Roe has been effectively eviscerated. Don’t believe it for a minute. It is very much alive and well, as is Casey. The Court, and the Court alone, remains the final judge of what may or may not constitute an undue burden. All the Court decided yesterday was (a) that there might be a valid legislative role in a very narrow category of late-term abortions; and (b) what constitutes an undue burden will have to await the specific application of the Act’s provisions to particular facts.
If you’re inclined to be optimistic, you might place some modest hope in the prospect that Kennedy’s opinion opens the door ever so slightly to an examination of what fetal viability means. But I wouldn’t count on it. Once the Court starts down that road, it will have to examine and discuss the characteristics of unborn children—an undertaking it hitherto studiously avoided, and for good reason. Still, Carhart is the first occasion in which a majority has even nodded in the direction that late-term abortions might be legally problematic. Roe disingenuously implied as much, only to ensure that the implication was swallowed by the maternal health exception at all stages of fetal gestation.
Now for the not-so-good news. Justice Kennedy made it clear that maternal health remains a viable constitutional standard. Indeed, he all but invited litigation that would present that issue in specific circumstances. What may be slightly less clear today than two days ago is that the maternal health exception may not be an absolute trump. Only time will tell.
4. The law professor Jonathan Adler notes: “Senate Majority Leader Harry Reid (D-NV) was among those who denounced yesterday’s Supreme Court ruling upholding the Federal Partial Birth Abortion Act. Commenting on the decision, Reid said, ‘A lot of us wish that Alito weren’t there and O’Connor were there,’ indicating his desire that there has been a fifth vote to invalidate the statute, as Justice O’Connor had provided the fifth vote to invalidate Nebraska’s partial-birth abortion ban in Stenberg v. Carhart.” There are several examples of politicians who voted for the partial-birth ban and then deplored the Supreme Court’s upholding of the constitutionality of that ban—and it’s a deeply disheartening phenomenon. It means that these politicians didn’t take their oaths seriously. It means they were only positioning themselves politically, hoping the Court would eventually bail them out. And it means that the pro-life credentials of these politicians are illusory.
5. A “chill wind is blowing from Rome,” announced one leftist site in a blog post titled “Catholics—5; The Rest of Us—Nothing.” The five Catholic justices on the Supreme Court formed—for the first time since Alito joined the Court—the complete majority on a decision. I think that we’re probably going to have to wait for the new fund-raising letters from NARAL and Planned Parenthood before we see the highest pitch of anti-Catholic rhetoric coming out of the Carhart decision. But for those who can’t wait, you can find the first groundswells here, here, here, here, here, and here.