|
|||||||
|
|
|
|||||
|
|
|||||||
Courting Disaster
Abortion is frequently trumpeted as the foremost "divisive issue" in American politics. This is without a doubt true. But the reason it is true is less often commented upon. If the Supreme Court had looked at Roe v. Wade and said "Nope, this one is an issue for the states to decide- there are no constitutional issues here", then abortion would not be the political bombshell it has become. By trying to "lift" the issue above the rough and tumble of democratic debate, the court essentially froze that debate in place. Given time and the natural American tendency to work things out, proponents on both sides of the debate would have at the very least felt that they were able to make an impact through democratic politics. Even if they were frustrated at the ballot box, they would have felt that they were capable of making a difference. My guess is that we would have come to an uneasy truce on the issue, with varying degrees of abortion accessibility in the various states.
Because the Court did not allow this process to occur, because they completely froze out one side by creating a new constitutional right out of the ether, the abortion fight has settled into a particularly nasty form of trench warfare.
The Supreme Court is still at it. Two decisions handed down in June, both by 5-4 votes, show a Court unable or unwilling to relinquish the role of supreme moral arbiter. The first of these decisions invalidated Nebraska’s ban on an especially grisly form of late term abortion. The second upheld a Colorado statute banning anyone from approaching, for the purposes of persuasion or moral intimidation, anyone seeking to enter a health care facility.
In a rare instance of doing my homework, I have taken the time to read the decisions and the delicious dissents in both cases. The results are fairly astonishing. It is clear that this Court, or at least five members thereof, will permit no democratic action to impede abortion, whether through legislation or direct individual action.
In the partial birth abortion decision, the majority relied on its decision in Planned Parenthood v. Casey, in which it ruled that states may express an interest in placing some limits on abortion (how very big of them), as long as those restrictions did not place an "undue burden" on the woman’s right to choose whether or not to abort her unborn child. Common sense would dictate that the Nebraska law passed this test easily. All it sought to do was to prohibit one particular procedure for aborting late term children which bordered on infanticide. Finding that the lack of a broader "health of the mother" loophole needed to be present, the majority declared that the law placed an undue burden on the woman, and hence invalidated it. Clarence Thomas authored the primary dissent, which took the majority opinion to task for failing miserably to apply the precedent of Casey. The four dissenting justices clearly felt that the law at issue easily met the tests set forth in Casey, and that the majority was clearly bound to reach the preferred conclusion despite its own precedent. Antonin Scalia, in a wonderfully nasty "I told you so" secondary dissent, went further, calling for the overturn of Casey altogether. The "undue burden" test was a judicial disaster, creating a test which means nothing more and nothing less than whatever five justices on any given day decide it should mean.
Where the first decision overturned a state law seeking to restrict some abortions, the second decision upheld a state law restricting the ability of citizens to exercise their free speech rights in opposition to abortion. Interesting pattern starting to develop: selective federalism. States are to be granted significant latitude in restricting freedoms only when it fits the Court’s ideological purposes. In the case at hand, Colorado had passed a law whose express and only logical purpose was to prevent "sidewalk counseling" by pro-life advocates. The majority bent and twisted and engaged in hearty sophistry to declare that this was in fact not the case. You see, the law prevented anyone from approaching, talking to or counseling anyone within 100 feet of a health care facility! Apparently, all those life insurance salesmen lurking outside the doors of abortion clinics will just have to find a new spot to do their thing. The dissenting minority opinion crisply and effectively disposed of this ridiculous argument. This law clearly targets one type of speech only – that of pro-life advocates. Having slammed the door on democratic resolution of the issue, the Court now seeks to squish any alternative means of debating the issue.
All in all, not a pretty couple of decisions, and not much reason for confidence. Any Court which prefers "rights" not found in the Constitution, nor in the declaration of Independence, nor in the Bill of Rights, nor in any case law prior to 1971 over an explicitly defined Constitutional right (free speech) has a serious attitude problem.
Hey, I just thought of a way that the "Hate Crimes" proponents can get their pet idea past the Supreme Court. Define trying to talk a woman out of having an abortion as a Hate Crime. They’ll find a way to declare it constitutional.