Strengthening Constitutional Self-Government

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Court upholds partial-birth abortion ban

Story here. Opinion here and here. Needless to say, I haven’t yet read the 73 page opinion. Anthony Kennedy wrote for the majority (the usual suspects); Clarence Thomas wrote a separate concurrence; and Ruth Bader Ginsburg wrote the dissent, joined by the usual suspects on that side. Matthew Franck offers this preliminary observation:

[T]here is something wrong when we wait with bated breath for the decision of one Supreme Court justice on a question of such importance. Justice Kennedy did what any reader of his dissent in the last such case (seven years ago) would have expected him to do. But the struggle for the heart and mind of Anthony Kennedy feels sometimes like the punishment of Sisyphus—and one never knows when one’s grip on the boulder will give way. Today persistence paid off. Next time, who knows?

He’s right.

Discussions - 20 Comments

While of course I like the result, I agree with Mr Franck. I don't exactly feel like cheering just because our black-robed panel of philosopher kings has finally seen fit to allow the legislature to legislate!! Imagine that, it only took two tries to get the court to allow some other governmental body to outlaw the "choice" of inducing birth, yanking a baby's entire body out of the birth canal, then splitting her skull while it is still just barely inside mom (or the "chooser," in this instance) and sucking baby's brains out through a tube.

Now the infanticide mills can only murder babies by burning them with saline, tearing them them limb from limb inside the womb, or vacuuming them out like garbage. We are a humane society!

I'm with wm. Having read quickly through the opinions, which describe this and other abortion procedures in detail, and which attempt to distinguish between one kind of gruesome infanticide and another, one is tempted to wonder if we are a civilized society at all. Try reading through this stuff, if you have the stomach for it, and concluding otherwise. Time to win some more elections.

A conclave of back-robed Latin speakers handing down edicts which all must obey. We have come a long way from the twelfth century, haven't we?

I wonder if this radical new idea called "liberal democracy", where the people make laws through their elected representatives or by referenda, will ever take off?

I like the tone of the these comments mucho. But a victory nonetheless, especially as Hadley Arkes has always been correct that the very discussion in the public sphere of partial birth abortion puts the spotlight on the reality of abortion that can only hurt the pro-abortion cause in the long run. And it particularly spotlights the fact that abortion blurs into infanticide. Conception is the only natural,scientific, and non-blurry line we have on this issue, which means that any coherent idea of natural rights must oppose abortion.

I choose to be happy about this result--whatever the convoluted path that had to be taken to get here. The controversy that inevitably will result from it will now be set on terms that are more favorable to the rational among us. And however imperial the court may have become, the power of the people is ever greater when fully realized. To the victor of a battle go the spoils and in this victory we have the opportunity now to determine the terms of the debate. And, of course, though--like RJ--I am equally horrified and saddened by the descriptions of these barbaric practices, I believe that Arkes is correct in observing that the horror it induces must be persuasive to all but the most hardened minds and hearts. I believe that the other side has for too long laid down the terms of this debate and that a great number of people--particularly young people--have no actual idea about what abortion really is. I do not despair that their reaction, upon true confrontation of the facts, will not equal my own. The truth will out and now is the best opportunity we've had for that in my political lifetime. Now on to the important work of maintaining momentum!

Yes. Partial-birth abortion bans are now -- at least for the time being -- "legitimate" in the political arena. This legitimizes PBA as a public issue and hurts the pro-abortionists, who want to hide behind empty abstractions.
In addition, anything that elicits howls of pain from Darth Bader Ginsburg is a very good thing.

It's striking that all the major Democratic candidates (Hillary, Obama, and Edwards) have all issued statements disagreeing with the ruling. Surely they don't want this to become an issue in the 2008 election, do they? I mean, PBA is a political loser in a general election...

The major Democratic candidates are not moderates on abortion -- or much else. They believe in radical judicial activism, and do not believe in self-government by the elected branches except when it's convenient for them. They are pro-abortion extremists whose hearts are too hard to recoil from the horror of partial-birth abortion. The next time someone talks to you about moderation in the Democratic party, point to the extremism of their presidential candidates. In particular, Oprahbama's "thoughtful moderate" image should take a hit in the mind of any ... thoughtful ... person who was tempted to like him.

Once again, David just hit the nail right on the head. Support for partial birth abortion is an extreme position that is rejected by an overwhelming majority of voters. Belief that it is "constitutionally protected" is even more radical. Yet every one of the front-runners for the Democratic nomination raced to the press room to condemn the court's decision. That pretty much says everything you need to know about Obama and his "moderate" image.

I am no Obama fan, but I'm curious as to how this one issue automatically destroys his attempt to be an all-around "moderate" candidate. Exactly what issues (or how many) do you need to be moderate on in order to be considered a "moderate" candidate? All of them? Or is the abortion issue some magical exception? And how can one even be moderate on abortion? Would you need to be a pro-choice, anti-PBA candidate? Or a pro-life, except in cases of rape, incest, and self-defense candidate?

Support for infanticide is not "moderate."

Dingus, it is tiresome to hear pro-life folk always refer to abortion as infanticide. We know that's what you believe, but it's rude and pointless to shove it in our faces. You may think you are merely standing for "truth," but that's the same thing to radical animal rights activist thinks he is doing. The next time you refer to a mink coat and someone else corrects you and says, "you mean a MURDER coat?" you'll get some idea of how pretentious you're being.


Something tells me these same anti-abortion activists would find it abhorrent if a state allowed abortion instead of banning it. I doubt that they'd react so strongly to judicial activism making all abortion (or almost all abortion, exempting the "big three") illegal and finally defining it as completely unconstitutional (or, in the least, against natural rights and the dear, dear preamble to the "Declaration of Independence").

Maybe I'm wrong, though. I don't know.

FYI: Last I saw Drudge had links to comments by the Big Three candidates from each party. Thought everyone would find that interesting. Unsurprisingly the three Democrats all called it a bad ruling, and all three Republican candidates (surprisingly?) called it a good ruling or a step in the right direction. Drudge also had up (I don't know if it's still there) a link to a story about how many British doctors are now refusing to receive training/perform abortions. One of the arguments the doctors made noted the fact that as our medical technology increases, infants are able to survive outside the womb at an earlier and earlier stage. Thus, late- and even middle-term abortions are being performed on unborn infants who would survive outside the womb at the time they were aborted. I've always believed that to be one of the strongest yet under-used arguments on the pro-life side. This is all good news, and hopefully the first of much more.

well, Matt, that is not what happened - the Supreme Court imposed the abortion regime in this country by fiat. Their decision was entirely unconstitutional, and to reverse an unconstitutional act of legislation by the judicial branch is not itself activism, but a correction long overdue.

And boo - it is murder. Having a baby 9/10 out of the birth canal then sucking her brains out is murder.


You're missing my point. Let's say that the Warren Court had never legalized abortion and the state of . . . I don't know . . . Utah (to use a ridiculous example) decided to make it legal. What pro-life, anti-judicial-activist American would disapprove of the Supreme Court telling them that it is illegal to perform abortions?

And as for this comment . . . Having a baby 9/10 out of the birth canal then sucking her brains out is murder.

It's more of a pregnancy to someone who's pro-choice than it is a baby (just like it is vice versa for a pro-lifer). Acknowledging that fundamental difference, I don't really know what use that sort of talk is . . . It's about as likely to convince someone that abortion is bad, as it is for me to try to convince you that, in some cases, abortion seems very appropriate (and maybe I'm not in the position to be judging when and where that is necessarily appropriate). It seems like it would just make a lot more sense to focus on why we are having so many unplanned pregnancies and try to fix that, rather than tell each other just how wrong the other one is.

Matt, America is far too focused on the why of pregnancy. We have ever more "fixes" available for the prevention of pregnancy. We are as open on the topic of sex as we ever have been in the history of Western Civilization, as far as I can tell. The most recently publicized study on sex ed. in America suggests that neither abstinence programs, NOR OTHER sex ed. programs in America are doing anything to stop sex, protected or otherwise, among the students of those programs. If sex ed. classes make no difference, whatever the type, then why do we bother with them? Maybe we could just stop talking about it, sex, and that might have some effect.

Pre-Roe, Oregon had no real limit on abortions in the first trimester. There was a procedure requiring that three doctors sign papers attesting to the need of the abortion for the life or health of the mother, and the latter could include mental and emotional health, in which case one of the doctors had to be a psychiatrist. I had a friend who had three abortions in the space of two years - a poli. sci. grad student. They weren't hard to get and you didn't actually have to be seen by all of the doctors.

You are right, though, that someone who was pro-life might not see anything wrong with the courts banning abortion by fiat. The term, "pro-life" sort of sums that up. If a person, simply being human, deserves the protection of the law against murder, then whether he has breathed air yet or not (simply as a matter of growth and development) seems a minor point.

Matt, I suggest you read the court's decription (or better yet, the testimony provided to Congress by pro-choice doctors) of what is actually going on. All the way through the ninth month, viable children are born, up until there is only an inch or so of their head remaining inside. The child kicks and clenches its fist as its skull is punctured, and jerks around as it tries to protect itself.

Do you seriously believe that moving the head an extra inch one way or the other changes the nature of this act?

When I marched for "women's rights" back in the 60's, I wanted, ready? read carefully: Equal opportunity as to employment and pay; I wanted a woman to have the right to choose an abortion when she "found" out she was pregnant...WHAT I NEVER, ever marched or supported was abortion as a method of birth control , which is what it became.
40,000,000++ abortions and counting. And, the USA has the distinction of having more yearly abortions then the entire world! Another first.
BTW are we not a republic still? I know the tinfoil hatted leftist loons are doing everything they can to take over control 100% and end the American experiment, but "democratic" is not a word I would for the loons.


You're half right. PBA can be performed very early in the term. I believe Dr. Carhart performed it up to 12 weeks.

But the infanticide cries are not entirely unfounded. First, read the testimony of Brenda Pratt Schafer (sp?) in both Carhart I and Carhart II. Then, crack open some of Peter Singer's work - Rethinking Life and Death, for example.

He advances the same arguments for infanticide during the first several months as he says apply to late-term abortion.

Regardless of where the line is drawn, it will be arbitrary to some extent. Roe attempted to accomodate this reality with the trimester system. Since then, the Court has focused on viability.

If we are going to draw a line anywhere between abortion-on-demand and life-at-conception, we need to grapple with the infanticide question. How late is too late? When does a fetus have some value, even if not a "person" under the 14th Amendment?

Dismissing these questions does not answer them.

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