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a wobbly first step

By Diogenes (articles ) | Apr 19, 2007

I'd like to be able to rejoice more whole-heartedly in yesterday's Supreme Court decision in Gonzalez v Carhart. But the argument of NROs' Mark Levin strikes me as uncomfortably plausible.

I don't understand what all the fuss is about. The fact is that Anthony Kennedy makes clear that he is open to a case where the litigant asserts a health exception to partial-birth abortion. He makes this clear in several ways, including distinguishing between a "facial" vs. "as-applied" challenge, and all but invites such a challenge. That is, he is soliciting a health-exception challenge. Kennedy also telegraphs how he'll vote -- with the other four activists. In short, he says the federal statute, which excepts partial-birth abortion in cases that threaten the life of the mother (thereby narrowing the health exception), is consistent with past court rulings, but he is prepared to reverse course in a future case involving non-life threatening health exceptions. Maybe today's decision will temporarily chill doctors from performing partial-birth abortions. But the emphasis here is on word "temporary."

Justice Ginsburg hits at the same point in her dissent (page 70 of this PDF doc):

If there is anything at all redemptive to be said of today's opinion, it is that the Court is not willing to foreclose entirely a constitutional challenge to the Act. "The Act is open," the Court states, "to a proper as-applied challenge in a discrete case."... The Court appears, then, to contemplate another lawsuit by the initiators of the instant actions. In such a second round, the Court suggests, the challengers could succeed upon demonstrating that "in discrete and well-defined instances a particular condition has or is likely to occur in which the procedure prohibited by the Act must be used."

To what degree is the impact of the decision jurisprudential, and to what degree is it political? As Rob Vischer notes at the Mirror of Justice blog, Justice Anthony Kennedy gives us a lot of his characteristic mushiness in the majority opinion he wrote. It's wryly amusing when he's writing for the wrong side, disconcerting when he comes bearing gifts (see also philosopher John O'Callaghan's comments here). To this amateur, it's impossible to guess the extent to which the rhetorical fluff will affect the future conduct of courts, but we all might wish there were more steel in Kennedy's moral reasoning.

That said, no one can deny that the howls of outrage we hear are coming from the right places. The editors of the New York Times are hyperventilating on schedule, and NARAL and NOW are in full fundraising mode. The decision has forced the presidential candidates to flip the abortion card face-up before they wanted to do so: they have to take a stance without knowing how it'll poll later on in a two-man race, etc. Moreover, it's reassuring to see that the rhetoric of those who oppose the decision is still the hard-core cant of 1970s feminism, which not only sounds dated to the fashion-conscious, but will make it hard for those forced to use it today to portray themselves as family-friendly moderates in the summer of 2008. Candidates don't photograph well with blood on their canine teeth, and plugging partial birth abortion makes it tough to smile before the cameras in any other condition.

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Show 9 Comments? (Hidden)Hide Comments
  • Posted by: - Apr. 20, 2007 7:44 PM ET USA

    Frankly, I don't think much of this decision because I never for one minute believed it was possible to have a rational discussion regarding the merits of taking innocent life. All it says is that you can't execute the child while its being born. The problem is not the law or the constitution. It is the pagan spirit which has infused and informed all public discourse in Western culture. Those who don't believe in the wrath of God might soon be in for a terrible awakening.

  • Posted by: - Apr. 20, 2007 3:25 PM ET USA

    Men who are pro-abortion are selfish and uncaring. Their underlying credo is, "You, mere woman, are nothing but a vessel who exists solely for my sexual pleasure. Any lasting consequence of our union can be legally erased, thus absolving me of any responsibility while you, lowly woman, must experience physical pain and risk possible embarrassment as evidence of our joining is removed. I don't even have to pay for it." Real men are pro-life which is the only way to be pro-woman.

  • Posted by: - Apr. 19, 2007 11:26 PM ET USA

    Heck, this is one victory I'll take. Thank you, thank you! I've been thinking about what abortion does to the status of men and women. Abortion gives women the upperhand, while men are reduced to the mercy of women and their ability to produce offspring.That is patently unfair. I don't know why so many men concede this issue. Also, with time, the natural inclination to produce offspring will eventually weed out the undesirable trait of cold, unmotherly instinct--and that is a good thing!

  • Posted by: - Apr. 19, 2007 6:22 PM ET USA

    Limited and fragile as it is, it is a victory, and we can be glad -- for a day. But the real challenge is to recapture the minds of Catholics on this issue (not excepting quite a few priests and a bishop here and there) who have abandoned the Church's well-reasoned teaching on abortion. Do that, and the electoral problem will solve itself.

  • Posted by: - Apr. 19, 2007 5:11 PM ET USA

    A possible “as-applied” challenge based on the health exception would seem foolish in light of the Court’s strong language regarding the State’s interest in protecting life. The PBA law is limited, but this Opinion was a vital first step. The Supreme Court now has established precedent upholding an anti-abortion law. It also provides some solid arguments that can be used to defend future laws. The States and pro-lifers need to take this opinion and build with it.

  • Posted by: - Apr. 19, 2007 3:12 PM ET USA

    The main thing is that this absolutely guarantees that no Catholic will ever again be confirmed to the Supreme Court. As long as Democrats hold at least 40 seats in the Senate.

  • Posted by: - Apr. 19, 2007 12:39 PM ET USA

    We Catholics need to push forward with this small victory. Not one child will be saved by this decision, they will only find other ways of destroying the child's life.

  • Posted by: - Apr. 19, 2007 9:56 AM ET USA

    We need to pray, then, that Justice Stevens decides to step down soon so President Bush can name another solid justice to the Supreme Court. I like Judge Janice Rogers Brown, personally.

  • Posted by: - Apr. 19, 2007 8:35 AM ET USA

    The tragedy is that the next (liberal) administration will not add to this razor thin majority.

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