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HERALD Columnist |
Last month's court ruling overturning Virginia's ban on partial-birth abortions was disappointing but not unexpected. Judges have knocked down such bans in 20 of 28 states that enacted them. One can only hope for a better outcome on appeal.
Explaining his July 16 decision in the Virginia case, U.S. District Judge Robert E. Payne said the law barring partial-birth abortions was too vague. That is what judges usually say in these cases, and it's a peculiar comment on its face.
No one but a hostile judge weighing a partial-birth abortion law has any trouble knowing what a partial-birth abortion is. The procedure involves partly delivering a baby, piercing the skull and suctioning out the brain, then completing delivery. It is more like infanticide than abortion. Why do judges find laws against it so hard to grasp?
But of course these decisions aren't really about flawed laws. They are about the exercise of raw judicial power to undo a legislative decision with strong popular support.
There is considerable precedent for courts to do this--no less than Roe v. Wade itself. Roe is the 1973 decision in which the Supreme Court first took it upon itself to impose abortion on demand on the country by judicial fiat. Roe and the pro-abortion rulings that have followed it are a principal source of the complaints widely heard these days about our "imperial judiciary."
The public is overwhelmingly opposed to partial-birth abortion, but many judges won't hear of banning it. They have absolutized a right--the right to kill an unborn child--that did not exist before 1973, and they are standing pat on that. In ruling as he did, Judge Payne took his stand in a long and odious tradition.
All the same, it is likely the partial-birth abortion issue will eventually reach the Supreme Court. That underlines the importance of court appointments to be made by the next President.
He (or she) will probably have a shot at three, possibly more. Chief Justice William H. Rehnquist and Justices John Paul Stevens and Sandra Day O'Connor all are expected to step down in the next couple of years for reasons of age or health. Rehnquist is an opponent of Roe v. Wade. Stevens and O'Connor are supporters.
This points to some simple arithmetic.
If the next President names three prolife justices and they are confirmed, they will join Justices Antonin Scalia and Clarence Thomas in a new five-member majority for overturning, or at least substantially modifying, Roe. If the President names pro-choicers, they will join Justices Anthony M. Kennedy, David H. Souter, Ruth Bader Ginsburg, and Stephen G. Breyer to make up an overwhelming 7-2 pro-abortion majority.
It is not so simple as to say that electing a Republican President will guarantee prolife justices. Gerald Ford, the quintessential "moderate" Republican, named the pro-choice John Paul Stevens to the court. Ronald Reagan, a prolifer, gave us pro-choicers Sandra Day O'Connor and Anthony Kennedy, along with the prolife Antonin Scalia. George Bush named David Souter--a pro-choicer touted as prolife before he went on the court--along with the strongly prolife Clarence Thomas.
Indeed, someone looking for consistency in this matter had best look to Bill Clinton, a pro-choicer who has put two pro-choicers on the court, Ginsburg and Breyer.
One lesson here may be that while prolife Presidents aren't permitted to make abortion a litmus test in filling Supreme Court vacancies, pro-choice Presidents are. George W. Bush has promised he won't use a litmus test. Don't expect Al Gore and Bill Bradley to say the same.
Shaw is a free lance writer from Washington, D.C.
Copyright ©1999 Arlington Catholic Herald, Inc. All rights reserved.
This article was published in the Arlington
Catholic Herald,
200 N. Glebe Rd., Suite 607, Arlington, VA 22203; Vol 24, No 32,
dated August 12, 1999.
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A note from the Web Master:
It is noteworthy and honorable that some folks are willing to stand up for a ban on Partial-Birth Abortion. Let us not forget that ordinary everyday run of the mill abortion is also murder. We must understand that aborting the life of a baby is murder no matter the method. Because one method of abortion seems to be horrible does not make the other methods less so. We should be horrified and sickened by any abortion regardless of the method. The Fifth Commandment spells it out clearly:
"Thou shalt not kill."
A fetus is a person, a human being with a God given soul.
Imagine the pain the Lord must feel when any abortion occurs. Please
contact both of your Senators and Representative, via letter or phone,
to let them know how horrified you are that abortions are legal and to
stop, once and for all, Partial-Birth abortions and all other abortions
as soon as possible.
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