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Partial Birth Abortion Still Legal

The latest judicial fiat issued from the 8th Circuit Court of Appeals predictably struck down the Partial Birth Abortion Ban of 2003. The suit brought against the government asserts that the law presents an undue burden on the women by not including an exception for the “health” of the woman. The last time this barbaric procedure was outlawed was in Nebraska, a federal court struck that statute from the books (Stenberg v. Carhart), primarily on the grounds that it contained no exception to protect the life of the woman. Congress reacted by passing a federal law with heaps of “findings” and “declarations” designed to make their law Stenberg-proof. It apparently wasn’t enough.

The 8th Circuit today casually remarked that “we need not address the government’s assertions that federal courts must defer to congressional factfinding.” Congress solicited opinions and held public hearings on the matter before overwhelmingly passing the law. Congress essentially claims that a medical consensus exits that partial-birth abortion is never necessary. The Court simply asserts that an opposite consensus exists. The research, hearings and debate of the legislative branch of government are meaningless.

After surveying the ugly landscape of abortion jurisprudence, the Court simply thrusts its palms up and recites the happy refrain of the activist judiciary. “Neither we, nor Congress, are free to disagree with the Supreme Court’s determination because the Court’s conclusions are final on matters of constitutional law.”

It is easy to gnash one’s teeth and toss such a judicial opinion over one’s shoulder, but there a few points here worth mentioning.

First, this Court brazenly describes is chilling detail the procedure they are upholding as legitimate. There is no embarrassment, no shame. This gives the lie to the old liberal line about the court watching the election returns and so not being too far out of the mainstream. Even the recalcitrant abortion champions in Congress have learned that the public wants no part of this abomination, but the courts do not respond to the will of the people.

Secondly, nowhere in this decision does the court address what counts as “health” when making an exception for the “health of the woman.” I doubt this omission was accidental. We can be certain that a headache or even “bad feelings” will ultimately be validated as a negative impact on a woman’s health, and such a proclamation would go a long way toward clarifying the terms of the debate. But it is in the interests of an activist, non-majoritarian judiciary to keep Congress busy passing laws that can be ceremonially struck down, knowing that abortion is a little more entrenched with each one.

Finally, the supremacy of the judiciary cannot be forgotten as President Bush makes his picks for the Supreme Court as well as lower courts. This case will undoubtedly end up before the Supreme Court next term, and its fate is far from certain. An optimistic conservative reads the tea leaves and sees possibly four votes in favor of overruling the 8th Circuit and upholding the law as passed. Whoever will replace the thankfully departed O’Connor will play a pivotal role. If that replacement is Alberto Gonzales, I do not see how he could avoid recusing himself based upon the fact that he is named in the suit (automatically dropped in there to replace Ashcroft as attorney general). A recusal would leave, at best, a four-four deadlock and that would effectively validate the 8th Circuit’s usurpation. This by itself ought to be enough to remove Gonzales from consideration (unless circumstances change).

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This page contains a single entry from the blog posted on July 8, 2005 12:34 PM.

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