Pro-lifers are celebrating today after the announcement that the Supreme Court upheld the Partial Birth Abortion Act of 2003.
The Supreme Court's new conservative majority gave anti-abortion forces a landmark victory Wednesday in a 5-4 decision that bans a controversial abortion procedure nationwide and sets the stage for further restrictions.
It was a long-awaited and resounding win that abortion opponents had hoped to gain from a court pushed to the right by President Bush's appointees.
For the first time since the court established a woman's right to an abortion in 1973, the justices said the Constitution permits a nationwide prohibition on a specific abortion method. The court's liberal justices, in dissent, said the ruling chipped away at abortion rights.
The 5-4 decision written by Justice Anthony Kennedy said the Partial Birth Abortion Ban Act that Congress passed and Bush signed into law in 2003 does not violate a woman's constitutional right to an abortion.
Siding with Kennedy were Bush's two appointees, Chief Justice John Roberts and Justice Samuel Alito, along with Justices Antonin Scalia and Clarence Thomas.
The law is constitutional despite not containing an exception that would allow the procedure if needed to preserve a woman's health, Kennedy said. "The law need not give abortion doctors unfettered choice in the course of their medical practice," he wrote in the majority opinion.
I love the wording of the story. You could practically see the reporter scowling as he wrote "anti-abortion forces" and "landmark victory."
It is the long awaited vindication of the conservative strategy since Ronald Reagan's presidency of nominating ostensibly conservative judges to the federal court. That strategy did not work too well for the Gipper; he gave us the dithering Sandra Day O'Connor and the disappointing Anthony Kennedy as well as the brilliant Antonin Scalia. George H.W. Bush continued the frustrating trend by giving us the never conservative David Souter and the ever faithful to the Constitution Clarence Thomas.
Those mixed bags of nominees have frustrated conservatives for 20 years. Bill Clinton didn't bother nominating justices who were anything but unabashedly liberal (Ruth Bader Ginsburg and Stephen Breyer).
Whatever his other shortcomings, President George Bush has delivered on his campaign promise to appoint judges more like Scalia and Thomas. And finally the pro-life movement has a victory to crow about.
Of course, the leftosphere is absolutely apoplectic about it. Let the whining begin:
Lawyers, Guns and Money: The decision is in. The Supreme Court today upheld the late-term abortion ban Congress passed after the Court struck down a similar ban a few years ago. Congress, if you remember, passed the bill after making findings that a late term (falsely labeled partial birth by conservatives) abortion was never medically necessary. Which is BS. Of course. Anyone with half a brain knows that.
Daily KOS: Chip, chip, chipping away at Casey's "undue burden" test until a woman's right to control her reproductive decisions fundamentally disappears. This is not the last restriction which Republicans will try to pass -- and remember -- the Supreme Court was able to render this decision because the Senate (with Leahy, Byrd and Reid) and House (with 60+ Dems voting in favor) passed this bill. Want to overturn this legislation and prevent worse from coming in the future? Elect better legislators.
Echidne of the Snakes: The so-called partial birth abortion, a term which is from the conservative codebook and not a medical one, has now been banned by the Supreme Court of the United States in a 5-4 decision. It was five middle-aged and old men who decided to do this, men, who will never have an abortion themselves, just to remind you all, and all these men were elevated to the court by conservatives. Elections have consequences. (Yes, Echidne, they do!)
TAPPED: Upholding ludicrously arbitrary legislation that puts women's health at risk without furthering any legitimate state interest, while signaling that the "undue burden" standard will be interpreted to uphold virtually any abortion regulation short of a ban, sets an extremely dangerous precedent.
It's hard to take the hand-wringing seriously. First, there's the "middle-aged and old men making decisions for women" argument. Of course, these same women didn't mind middle-aged and old men making the decision to allow abortion on demand. Nope, that was just ducky with them.
Then there's the shrieking about the "undue burden" test imposed on us by the fuzzy-headed O'Connor. If ever there was a test that needed to be overturned, it was that one. It was, truly, the exception that swallowed the rule. O'Connor couldn't find even one abortion type that could be regulated. Not one. At least now, we can have some sanity on this issue.
Daily KOS linked to this terrific article by Hadley Arkes from October 2006 that lays out the strategy (not that we didn't know this already).
With O’Connor now replaced, it seems a good bet the Court would overturn that judgment. Whether it will reach the same result with a ban on partial-birth abortion emanating from the federal government is a notably different question. Still, if Roberts and Alito help simply to overturn that prior decision on partial-birth abortion, my own judgment is that the regime of Roe will have come to its end, even if Roe itself is not explicitly overruled. What the Court would be saying in effect is, "We are now in business to consider seriously, and to sustain, many plausible measures that impose real restrictions on abortion."
That would invite a flood of measures enacted by the states. They might be restrictions on abortion after the point of viability, for instance, or even earlier, with the first evidence of a beating heart. Or requirements that abortionists use a method more likely to yield the child alive. Or provisions that ban abortions on a child likely to be afflicted with disabilities, such as Down syndrome.
Each restriction would command the support of about 70 or 80 percent of the country, including many people who describe themselves as pro-choice. And step by step, the public would get used to these cardinal notions: that the freedom to order abortions, like any other kind of freedom, may be subject to plausible restrictions; that it is legitimate for legislatures to enact those restrictions; and that it is, in fact, possible for ordinary folk, with ordinary language, to deliberate about the grounds on which abortions could be said to be justified or unjustified. This seems to me the path far more likely to be taken by justices with the judicial temperament of John Roberts and Samuel Alito.
It may also be the better and more prudent path to take. To overturn Roe in one decisive stroke risks setting off a panic among people who have been led to believe that they would be dispossessed, at once, of rights they have come to regard as fundamental. We’ve lately had the spectacle of people even with college degrees apparently seized with the notion that the overruling of Roe would make abortion illegal, overnight, throughout the land. Simply overturning Stenberg v. Carhart this fall would avoid that panic and nonetheless mark the beginning of the end of Roe.
The vast majority of Americans want more restrictions on abortion. That's the dirty secret the left won't tell you. They always couch the argument as "making women second class citizens" and "controlling women's bodies." But these arguments are false.
There are already plenty of laws on the books that restrict what you can and can't do with your body, from banning underage tattoos and ear-piercing without parental consent to preventing the sale of one's organs on the market. As a society, we've decided there are certain things that are simply not in society's best interest, even if individuals wish to do them (polygamy comes to mind).
As for the "second class citizen" nonsense, this, too, is a silly argument. Restricting when, where, and under what conditions one can end a human life isn't making a pregnant woman a second class citizen. What it is doing is upholding the portion of Roe that acknowledged that the state has an important interest in life, particularly past viability. Originally, the woman's right to bodily integrity was supposed to wane as the child's interest in life grew greater. Somehow, modern abortion law had forgotten that (thanks, Sandra!).
But now we have a court that seems to have remembered that portion of Roe v. Wade, and the pro-abortionists are angry about it.
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