Wednesday, April 18, 2007

Partial Birth Abortion Ruling

I didn't post anything about this yet, because generally the initial press reports are vacuous and inaccurate. I like to wait and let really smart people look over the ruling, before I begin to digest it. Here are a few ideas floating around:

1. This is an important win for Conservatives not only because it provides the first victory for abortion restriction since Roe in general, but because of the specifics. Partial Birth Abortion is totally and completely abhorrent to any normal American faced with the specifics of it. Defending this procedure can only be done with euphemisms, and by looking at the practice of it in abstract. Indeed, look at the dissent provided by Justice Ginsburg where a major part of her displeasure comes in the acceptance of useful and descriptive terms rather than the usual liberal mish-mash.

In the course of her dissenting opinion, Ginsburg accused the majority of offering "flimsy and transparent justifications" for upholding the ban. She also denounced the Kennedy opinion for its use of "abortion doctor" to describe specialists who perform gynecological services, "unborn child" and "baby" to describe a fetus, and "preferences" based on "mere convenience" to describe the medical judgments of trained doctors.

Indeed, strip away the veneer of euphemism, and the practice is shown to be barbaric, which, in truth, it is. The only way to keep it the practice in place, in reality, was by judicial fiat.

2. A democratic congress is not going to overturn or make a new federal PBA law. This is a fight they definitely do not want. Look at the people who voted for it in the first place, people like Harry Reid and Patrick Leahy. I fully suspect that they voted for it figuring it would be struck down in the courts, but they voted for it nonetheless. To go back and revisit this now would be an utter disaster for a new Democratic congress.

3. The best way to attempt to strike down the law, would be via a federalism defense. Indeed, in his opinion, Clarence Thomas invites this line of reasoning:
I also note that whether the Act constitutes a permissible exercise of Congress' power under the Commerce Clause is not before the Court. The parties did not raise or brief that issue; it is outside the question presented; and the lower courts did not address it.
I'm pretty certain that there will be no challenges in this direction as it opens a whole new can of worms with possible Stare Decisis results that Liberals generally do not want open. And even if such a challenge is made and upheld, over 30 states have state Partial Birth Abortion laws that would survive a based on the reasoning of this decision.

4. Kennedy left the question open as to what might constitute when the health of the mother is in danger. He placed the onus on an actual real life case to help define this issue rather than theoretical reasoning. This is a pretty big deal as it focuses the debate upon specifics which always favor the pro-life argument.

5. This will be a big money maker for Democrats. Gabby Giffords was funneled $53,000 by Emily's List contributors last quarter alone. Look for this to move upwards, although ironically, Giffords will be in no position to do anything about the ruling.

6. While I don't suspect the Republicans to turn this into money in the same manner, it does give an amount of Mojo to Conservatives in particular, and the Republican party in general. This has been lacking for quite some time, and should pay large dividends down the road.

I'm sure that we will have more on this.


Sirocco said...

Good post and good analysis. My only comment addresses your point #1. Ginberg is not wrong in her criticism of Kennedy's terminology, it's inappropriate and unnecessarily provacative.

You are not wrong that the practice is an ugly one.

I support women's right to choose ... but I can't say I am really sorry to see the ban on this type of abortion upheld.

Framer said...


With your comments on the last two posts you have proved yourself sufficiently squishy on abortion so that:

1. You will never survive a Democratic senate or congressional primary.

2. You have ruined your chance to be appointed to the Supreme Court.


Anonymous said...

Well, I would have ruled with the minority if I were a SC justice. I'm just admitting the actual implementation of a partial-birth adoption is particularly ugly, which it is. I'm not sorry to see it go, even though I wouldn't have ruled as the court did ... but I wasn't planning to run for office anyhow. :P

Framer said...


Just curious, on what constitutional grounds would you have ruled against the ban?

It seems to me that even if you uphold Roe v. Wade as sacrosanct, you cannot hold it to mean any type of abortion at any time is legal. That being the case, who gets to define those parameters? It is certainly should not be within the courts purview to lay down those limits, that is complete foolishness.

What the court upheld is that congress reserves the right to make law in these circumstances, and it is the duty of the plaintiff to show that "the health of the mother" is actually in danger in a specific manner, which they failed to do on this occasion. They didn't even really try.

Certainly Ginsberg's dissent carries a lot of pro-abortion screeds, but it does not address the substance of the question brought before the court. It suggests that the dissent was looking for outcome based reasoning, rather than judging the merits of the case. Outside of arguing that Roe and Casey offers access to abortion free and unfettered at any time for any reason and cannot be subject to any law, I don't see that she has a case. She didn't argue this.

Looking at the opinions of Kennedy and Thomas, I see that specific care was applied to the facts and findings of the actual case. Thomas brought up the argument about the possible abuse of the interstate commerce act, and Kennedy offering to reconsider should an actual case be shown where the health of the mother was actually threatened.

It would suggest to me that Kennedy and Company had the stronger, better reasoned argument for the particular case, even were I not inclined to agree with the outcome.

Sirocco said...

As a fast note, the law in question actually doesn't have an exception (I don't believe) "for the health of the mother". Right there would be basis for finding it Unconstitutional.

Framer said...

That is the point of the decision. I believe Justice Kennedy would be sympathetic to this reasoning if it could be proven that "health of the mother" was an actual valid concern with this particular procedure.

Currently there is exactly zero evidence that this is the case.

Given that, Kennedy invites those wishing to strike down the law to present the evidence that a woman's health can be harmed if this procedure is not given. If none exists, then it is entirely right and just that congress have purview over the matter.

The Catch 22 however, is that should this angle be revisited, it may require a court decision about what is actually contained in "health of the mother." Is that something those who support abortion want visited? I would assume that may do more damage to abortion in general that the ground they gain with PBA.

Were I an abortion advocate, I would wish to leave that definition as nebulous as possible, but they certainly have no right to that, Roe or otherwise.