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.