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Monday, April 23, 2007

Court ruling abets life, logic

By Dennis Byrne
Chicago Tribune

Reacting to last week's Supreme Court ruling upholding a federal law banning partial-birth abortion in most cases, Sen. Barack Obama (D-Ill.) said he agreed with Justice Ruth Bader Ginsburg.

As she emphasized in her dissenting opinion, Obama said, this ruling "signals an alarming willingness on the part of the conservative majority [on the court] to disregard its prior rulings respecting a woman's medical concerns and the very personal decisions between a doctor and patient."

Far be it from me to disagree with someone who taught constitutional law at the University of Chicago and with my sister publication, the Los Angeles Times, which called the decision an "unconscionable U-turn" from past decisions, but they've got it wrong. Although not as wrong as the wild-eyed pro-choicers who should come down from orbit and first read the decision before they pronounce the end of womankind.

They might think the reasoning of the court's majority is overly clever, but it should be examined because its explanation needs to be understood about why it does not "disregard prior rulings."

The court argues that its latest decision -- Gonzales vs. Carhart -- not only follows the precedent of the landmark 1992 Planned Parenthood vs. Casey case, but also said that deciding Gonzales otherwise would have "repudiated" Casey. Writing for the majority in Gonzales, Justice Anthony M. Kennedy argued that Casey reaffirmed the "essential holdings of the 1973 landmark case, Roe vs. Wade," which included the principle that the state has "legitimate interests from the pregnancy's outset in protecting the health of the woman and [emphasis added] the life of the fetus that may become a child." Yes, Roe says the interests of the woman and the fetus can be balanced.

The court observed that, in accordance with prior decisions, restrictions that place "an undue burden" on the right to have an abortion are not permitted. In other words, a law that purposely places a "substantial obstacle in a woman's path" is not allowed. But if it doesn't -- and the court concluded that this ban doesn't because women arguably have other safe alternatives -- Congress can pass laws that "express profound respect for the life of the unborn." In concluding that the ban does not create an undue burden, the majority rejected arguments that the ban is "too vague," again citing previous decisions that set tests for "vagueness."

As important, the court said that the law was a proper response by Congress to a previous high court decision, Stenberg vs. Carhart, in which it found that Nebraska's partial-birth abortion ban violated the Constitution, as applied in Casey. The language of the congressional ban is significantly different than Nebraska's ban, the court pointed out. And Congress is not required to agree with the controversial "factual findings" set out by the district court in Stenberg. Also, Kennedy wrote, Congress has a right to state its own findings: that partial-birth abortion "is a gruesome and inhumane procedure that is never medically necessary and should be prohibited."

Casey, Kennedy said, "reaffirmed that the government may use its voice and its regulatory authority to show its profound respect for the life within the woman ... The act's ban on abortions involving partial delivery of a living fetus furthers the government's objectives. Congress determined that such abortions are similar to the killing of a newborn infant. This court [in Washington vs. Glucksberg] has confirmed the validity of drawing boundaries to prevent practices that extinguish life and are close to actions that are condemned."

There's one more point to be made about how this decision respects precedent: The heart of the pro-choice argument is that the ban fails to protect women's health and therefore is unconstitutional. But they never define "health" in the kind of detail that another high court decision does. Doe vs. Bolton, the companion case to Roe vs. Wade, makes it clear: Health is anything that a woman defines it to be, even if it is nothing more than her discomfort about her pregnancy.

If the rigid pro-choicers could acknowledge that an exception to the partial-birth abortion ban should be allowed (like the one that allows the procedure to save a woman's life) only in cases of the most serious health problems -- define it as you like and let's debate it -- then maybe we wouldn't have been in court fighting over this ban in the first place. If, as this court suggests, Congress and state legislatures are the proper places for this debate, perhaps compromise on this contentious issue is possible.


Rey Flores said...

Obama is no good. As the first Hispanic columnist to interview him, I felt that this guy had the best interests of the working class and poor in his heart.

Once I asked him about the Planned Parenthood's heavy presence and genocide in the black communities in America, he refused to answer my calls.

Denis Drew said...

What will pro choicers say in days to come when fetuses (aka, babies) may be removed from the womb overnight for medical care and returned? Will they defend part-time birth abortion, too -- after return -- some fetuses slave; some free?

Roe v. Wade purports itself to be a compelling interest test: whereby a fundamental constitutional right may only be overridden by a compelling state interest. Only problem?: even possible human life in the womb (who knows when full-fledged life certainly begins) sounds kind of compelling -- and what court would dare to set an exact point where possible life is probable enough?: too obviously legislative?

Ergo, at the very last moment Roe changes constitutional spots and becomes a "consensus test": "may not, just by adopting one theory of life, override the rights of the pregnant woman at stake." The -- previously unheard of -- consensus test: Roe's deux ex machina?

Could something be fundamentally wrong with a decision that finds it necessary to sneak around it's own purported constitutional logic? Could something be substantively morally wrong, too? Or why would the Court need to dissemble?

PS. How about head first, partial birth abortion -- performed by any indigent couple who cannot afford a very late term abortion? Too bad the "prom date" couple of some years back didn't know about this -- could have saved themselves a lot of legal hassles.

Anonymous said...

I am a liberal who believes that women should be in control of their reproductive lives.Only when all of you pro lifers start living what you preach and end war once and for all will you be able to take a Pro Life stance with some credibility. I read your opinions in the Chicago Tribune often and find it comical that you are so concerned with the unborn and so unconcerned with the children in Iraq that your illegal war has killed, ON PURPOSE! You and all the other pro lifers who supported Bush and this war knowing you would be killing innocent children and other civilians are the biggest hypocrites and in my oppinion scum bags walking the planet. Abortion is not pretty and none of the women that I know who have had an abortion took the decision lightly. It was very hard on all of them. None of these woman took abortion as lightly as you take the slaughter of thousands in war! If you wish to be taken seriously as a pro lifer start advocating for peace, then you may be believable! Thank you for your time, M. Vogel

Stephen Schade said...

Mr. Byrne:

That this ruling does not create an undue burden comes as a surprise to the 2200 women and their doctors who elect this procedure every year.

As for Senor Flores, he should know that poor women are several times more likely to have abortions. Calling it genocide is an affront to these women and Sen. Obama. If he really wants to prevent it, why not support policies, such as universal preschool, that will lift people out of poverty?