Strengthening Constitutional Self-Government

No Left Turns

Another thought on the politics of Gonzales v. Carhart

All the leading Democratic candidates, two of whom serve in the Senate, have condemned the Court’s decision. They’re in a position to do something about it, as Congress did in the aftermath of Wards Cove (the Civil Rights Act of 1991), Stenberg (the PBA Act of 2003), Employment Division v. Smith (RFRA), and Boerne (RLUIPA).

Couldn’t Senator Clinton or Senator Obama propose a "new and improved" PBA Act, including the health exception, for example? That would be "real leadership" in the face of a decision that Justice Ruth Bader Ginsburg called "alarming." Could it be that the good Senators actually fear that such a law wouldn’t pass, even in a Congress controlled by Democrats--ackonowledging, in other words, that the only way they can accomplish their aims is judicially, not "democratically"? Or that proposing such a measure--which would at least concede the horrific wrongness of PBA in some instances, even if the health exemption opens a loophole big enough to drive a tank though--would displease the hard pro-choice Left in the Democratic Party? Or is it that they really don’t want abortion to be an issue in 2008?

Ducking this opportunity to set right something that they call a grievous wrong doesn’t speak well of their leadership, does it?

Update: In the comments, Brett Marston notes that Senator Clinton has in fact stepped up to the plate as a co-sponsor of the Freedom of Choice Act. So we’ve got the "legal" covered, and probably the "safe," but what about the "rare" (assuming that the safety exemption effectively swallows any effort actually to regulate or prohibit abortion or any technique of abortion)?

Update #2: Here’s the Senate roll call on the Partial-Birth Abortion Ban Act of 2003; note that very few "red state" Democrats voted against the bill; the picture is a little more complicated in the House, where it also passed handily. Is there anyone willing to say that the politics of this measure has changed in the ensuing four years?

Discussions - 4 Comments

You might want to check out S. 1173, introduced on April 19 (eight days ago). You can find the bill text on Thomas, but the gist of it is that it codifies a health exception.


But it leaves entirely undefined what "health" means, presumably as a way of leaving it to mean anything a woman or a physician wants it to mean. What's more, since it says that a state may not interfere with a woman's right to have an abortion after viability (in cases of "health" and "life") and "viability" is left by statute to the discretion of they physician (though perhaps modified by the "reasonable" clause), it looks to me like a law that would prohibit a lot of pretty moderate restrictions (short waiting periods, parental notification, etc.), wouldn't it?

I'm not so sure that the Democrats want to get into a prolonged debate on the "health" exception - it might prove too educational for the American public and show that what it does is essentially obviate most any real restrictions on abortions.

I disagree with your premise, Michael, and that of Joseph in writing the post. Not only do Democrats want to get into the discussion of why there should be a "health exception," as evidenced by the bill that Joseph didn't think Democrats would have the will to introduce, I think that outside of the circle of abortion foes, it's a winner. But a lot depends on the framing.


You're right. Framing is everything. Pro-life folks will frame this as a response to Gonzales v. Carhart and as a license for "abortion doctors" to do whatever they please whenever they please. Does HRC really want to have this debate between now and November, 2008? In the context of partial-birth abortion (or, if you will, "intact D&E"), I don't think it's a winner, especially since the alternatives at that stage are, as Ginsburg pointed out, equally gruesome.

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