Supreme Court upholds ban on "partial birth" abortion
Yesterday, the Supreme Court, by a 5-4 vote upheld the Federal ban on a particular type of abortion which is usually used in abortions after the first trimester, although it is used infrequently.
The vote had exactly who you'd expect to see on each side voting the way you'd expect, with the villainous (because of his vote in Kelo) Anthony Kennedy again providing the swing vote for the majority.
This case was interesting because the Court did not overturn the Federal law even though it leaves no exception for when the mother's life is in danger.
A couple more narrow points made in a Bloomberg story about the decision: "The court stopped short of overruling the 2000 case, Stenberg v. Carhart, saying the federal statute was narrower in key respects than the Nebraska law. The majority also left open the possibility that doctors could ask a judge for permission to use the disputed procedure for particular medical conditions that pose a health risk to the mother."
I'm sure that there are many cheers of celebration coming from Colorado Springs and other bastions of the religious right. But for me, this is a double-edged sword, with both edges bad.
While I am pro-choice, I do believe Roe v Wade is bad law. It deserves to be overturned, and as much as I would not enjoy the likely outcome, states probably should have the right to regulate abortion. And while there is no doubt that "partial birth abortion" is a fairly gruesome procedure, I am exceptionally wary of allowing the government, especially the Federal government, to draw lines that politicians could easily move or to define what sort of medical procedures are allowable.
This Supreme Court decision is the worst of all possible worlds: It gets the camel's nose substantially under the tent in terms of allowing government interference in medical decisions, and, from my point of view even worse, it validates that interference from the Federal level. Even if I supported regulation of abortion, there is clearly no Constitutional authority for such regulation to come from Congress.
In any case, the political implications of this decision are interesting. Of course, it is so long until the next election that the effects may be somewhat muted, but again I'd say it's a double-edged sword. It will likely motivate the social conservative part of the GOP base, but it will also motivate the social liberal part of the Democrat base. (Yes, almost all Democrats are social liberals, but I mean the part of the base which really focuses on abortion as their issue.)
I think this Court result might help the GOP raise money from that religious conservative base, but I also think it will turn more women voters away from the Republican Party.
And for those of us who consider ourselves essentially libertarian, today's ruling is yet another reason to question why we should support the GOP over the Democrats. Indeed, a good friend of mine who is about as far from being a liberal as one can get said this to me today, after hearing about this decision: "I'm voting democrat in 08 ... i don't care who it is. I've had it with these %$@*!"
So, while some Republicans may be celebrating now, my guess is that today's outcome is a net negative for their electoral prospects...and part of me hopes that it is, despite how truly horrible Democrats are on everything from taxes to national security. It's a political Scylla and Charybdis. I can't tell you how much I wish the Libertarian Party were actually capable of winning at a national level. The structure of our system makes that all but impossible, but rulings like today's are the best thing that could happen for the prospects of political third parties.
[Note: I understand many of my "conservative" readers won't be particularly happy with this posting, but before you start saving some special place in hell for me (which, for the record, I don't believe in) please understand that my objection to the Supreme Court ruling is much less about restrictions on abortion than about federalism, respecting the Constitution, and a belief (or a certainty) that regulations of almost all types belong at the state level, and not coming from Congress. As I said before, while I would vote against abortion restrictions, I believe states probably have that right. The beauty of our system, with 50 "laboratories of democracy", is or at least should be that regulations for which there is no federal authority can be implemented on a state-by-state basis with states learning from each others' success or failures, and citizens able to vote with their feet if they really don't like their state's policies. Although I actually voted with my feet and moved out of the country after Bill Clinton's tax hike, that's simply not possible for most Americans and makes the principle of federalism that much more important.]
| Print article | This entry was posted by Rossputin on 04/19/07 at 02:38:39 am . Follow any responses to this post through RSS 2.0. |
Yours truly
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04/19/07 @ 08:55:03 am
While I find abortion abhorrent, I don't disagree much with your post.
Having said that, I think there is an argument for federal regulation of such procedures. Sadly, neither the court nor the politicians discussed it.
As I've written in your blog before (and I won't repeat here), the abortion debate can be rationally reduced to less than a handful of tenable hypotheses, none of which is ever actually and rationally debated.
One of these arguments is that abortion boils down to a conflict of rights between two human beings: a liberty right of the mother and a life right of the child.
If one were to subscribe to this one hypothesis (which you must concede is but one of the rational approaches to abortion) then it's not too far fetched that there is federal authority to regulate the resolution of the conflict through the interaction of the fifth and fourteenth amendments.
04/19/07 @ 09:08:37 am
RGK,
I respect your ability to look at Roe v/s Wade from a constitutional standpoint as opposed to a strictly moral issue. I've been thinking about the question of when is it right for the government to 'step into our lives' from a moral standpoint? if ever? I agree with you 100% on that ridiculous gambling bill sneak attack (even though i no longer gamble). What about drugs, should they all be legal? Probably more than are now in my opinion. How about a severly challenged/deformed child, if the parents don't want to have to be 'burdened' with that child his/her whole life, can the gov't tell them they can't just dispose of the kid shortly after birth?
In a free, democratic, capitalist society where do you draw the line from a morality standpoint? If there is one, what are those morals based on or better yet where do they come from? Even as a christian, I don't want or expect the gov't to enforce my entire moral/biblical code on our free society. But I do believe some of these values/morals are vital to maintaining a free and civil society. I'm looking forward to your take on this subject. Please forgive me in advance if you've addressed this in a previous post, all my best.
SAT
04/19/07 @ 11:32:16 pm
"In a free, democratic, capitalist society where do you draw the line from a morality standpoint?"
The line should be drawn at zero. The government has the responsibility to protect property rights and defend the rights and safety of individuals. The real question with abortion is when does the life of a person (and the corresponding protection from the state) begin? As Ross stated, this is a decision for the states and not the feds.
05/01/07 @ 09:46:17 am
[NOTE: This comment is interesting enough to get its own full posting on the blog, and will be running in a few days (from the day it was posted here as a comment.)]
There’s been a tremendous amount of media attention to the recent Supreme Court’s decision of Gonzalez v. Carhart which upheld a federal law banning certain forms of abortion.
Ross was no exception and I made an earlier comment on his post expressing support for his constitutional approach.
I’ve now gone back and read the actual decision of the court (available here:
http://www.supremecourtus.gov/opinions/06pdf/05-380.pdf) and conclude it was correctly decided. I would recommend Ross read it as it is a good example of judicial restraint.
In order to appreciate the decision, it’s important to understand the proper role of courts of appeal in the US adversarial system. That is, whilst the court has on occasion violated this rule, in the general case courts are only supposed to weigh the facts and arguments presented by the parties to a case (in contrast to an inquisitorial system, where the court actively engages in a “truth” finding mission).
Courts certainly have looked at issues not brought before them but this practice is frowned upon since it undermines the proper role of the judiciary in an adversarial system and infringes on the other branches of government; courts are to restrain their view to the cases and issues before them.
The appellants in Gonzalez were in a bind. They wanted to have the court throw out the Federal law. If they had argued lack of Federal authority, they might have inadvertently forced a review of Roe v. Wade which created a federal right to abortion (out of thin air, I would argue). They clearly did not want to risk that. Instead, they challenged the law on the basis that it was:
1. Facially vague; and
2. Creates an undue burden on the rights established by Roe and progeny.
Facial vagueness was correctly interpreted by the court in the light of Casey and its progeny. Justice Kennedy described at great length the tests that the existing jurisprudence provides for facial vagueness. He also examined the relative strength of the rights of women to abortion that change throughout a pregnancy as established by Roe, and concluded (correctly, I am now convinced) that the statute was carefully drafted to avoid these problems.
A similar analysis reached the same result vis-à-vis the undue burden argument. Roe did not create an absolute right to abortion, but made it clear that the state has a compelling interest in the life of the child post viability, and that the state interest increases with time in pregnancy. The court also correctly pointed out that it’s not impermissible for a burden to be imposed but that the key is that the burden not be “undue”.
Referring to long-standing doctrine and a case completely unrelated to abortion, Justice Kennedy wrote:
In conclusion, throwing out both the arguments raised on appeal, the court could do nothing else than to reverse the decision of the court of appeals, and uphold the constitutionality of the federal statute on the issues that were raised on appeal.
Justice Thomas wrote a concurring opinion (joined by Justice Scalia) which summarized this view remarkably clearly. It is so succinct, so brilliant, that I report it in its entirety (minus internal citations):
Since Justice Thomas is clearly asking congress for some reasons to reverse Roe I conclude with an interesting question – at least interesting to me. If the Supreme Court errs in a monumental way with a case like Roe v. Wade, how should the other branches of government respond? How are they to continue protecting the constitution in accord with their oath of office?
One option is to write laws in blatant disregard of the court’s opinion and thereby generate a continuous string of challenges hoping to chip away or force reversal of the bad decision (thus restoring proper constitutional context). Another option is to accept the bad ruling, and work within it to regulate the fiction created to best advantage. A third option is to create an environment where incentives are strong to prevent the bad outcome the court may have allowed.
This last option is available for decisions such as Kelo (forcing as much property protection as possible) but don’t work well for things like Roe: how do you give the states something that was taken from them?
That leaves the first two options. I don’t think ignoring the court’s error is a responsible choice.