A Stitch in Haste

Abortion is, for the obvious reasons, not a high-ranking issue on my personal or blogospheric agenda. But I will use the announcement today that the Supreme Court has agreed to hear an Administration request to review the constitutionality of the federal Partial-Birth Abortion Ban Act (which has been ruled unconstitutional by three separate lower courts), to make a point that I have made as a commenter on other blogs but never here.

I have no opinion on the PBABA or its constitutionality, or on how the new composition of the Court affects either this case or the future of Roe v. Wade, 410 U.S. 113 (1973). All of that is secondary to a simple fact that is for the most part being overlooked: the PBABA is a federal law, and this is the first time -- ever -- that the Supreme Court will review a federal ban on an abortion procedure.

Fast-forward to some hypothetical scenario where indeed Roe v. Wade is overturned. Contrary to what many observers believe, that would not mean that abortion would be "left up to the states." Does anyone seriously doubt that, if Roe were overturned at 6pm in the evening, then conservatives would introduce a federal "Right to Life Act" in both chambers of Congress by 8am the next morning? And given the Court's current thinking regarding the scope of congressional powers (especially under the Commerce Clause), and federal pre-emption generally, there is no reason whatsoever to think that the Court would deem "regulating abortion" as beyond the reach of Congress. Roe is no longer (if it ever really was) about "leaving it up to the states;" it's about leaving it up to either the mother or to Congress. The states will never again be a significant part of the equation, with or without Roe.

The PBABA, while not in conflict with Roe's core holding, is a perfect example of how abortion is not a federalism issue: None of the three courts that ruled PBABA unconstitutional did so on federalism grounds. None of the activists praising or condemning the Court's decision to hear the case are doing so based on federalism arguments. The question here is not whether Congress crafted a law impermissibly in violation of the Tenth Amendment, but simply whether Congress crafted an impermissible law in violation of Roe. The difference is subtle but important.

It's perfectly reasonable to oppose the PBABA, or Roe on jurisprudential grounds, or on moral grounds. It is not reasonable to oppose them on federalism grounds. Given the current state of enumerated powers and Tenth Amendment jurisprudence, federalism has absolutely nothing to do with it, at least not anymore.

The case is Gonzales v . Carhart (05-380).

More thoughts at PoliBlog, California Yankee.

This time it's James Q. Wilson (WSJ -$):

Suppose, in response to a lawsuit brought against the South Dakota law, Roe were overturned. Abortion would not disappear. Women would not visit quack doctors or travel to Sweden. Abortion would be legalized in many states (it was legal in five before Roe was decided), but having been made legal by state legislatures, the laws would, as in Europe, accommodate the diverse views of proponents and opponents.

How many times are conservatives (and some libertarians) going to repeat this lie?

If Roe were overturned, Congress would immediately pass and the President would immediately sign (at least this Congress and this President would) a Federal Right to Life Act, which would in turn be upheld by the Supreme Court (at least this Supreme Court would) as a valid exercise of the Commerce Power.

Don't believe me?

Still don't believe me?

How about now?

It's bad enough when people worship the false god of federalism (do you really care whether your rights are being trampled by the federal government or "merely" the state?). But it's even worse when people invoke a federalism that simply does not exist.

It's perfectly rational to oppose Roe. It's not at all rational to oppose it on federalism grounds.

More thoughts from Rossputin.

Here are my hasty stitches on the Supreme Court's ruling upholding the Partial-Birth Abortion Ban Act of 2003:

--While an undoubtedly important case, I don't think it's as apocalyptic regarding the future of reproductive rights as some pro-choice advocates insist, for two reasons:

1. Partial-birth abortion ("dilation and extraction," or "D&X") truly is an extreme and graphic procedure. Much of modern medicine is. D&X represents the absolute fringe of abortion procedures — as "push the envelope" as possible. It accounts for less than 1% of all abortions, and is exclusively a post-viability procedure. It is not irrational to be pro-choice, but disturbed by D&X — this appears to be precisely Justice Kennedy's position.

2. Neither Chief Justice Roberts nor Justice Alito joined Justice Thomas's "not in the Constitution" concurrence calling for the overturning of Roe and Casey (sidebar to Thomas: try the Ninth Amendment). Of course, Roberts and Alito didn't have to join, and thereby telegraph their views, but the question of whether this Court would ever opt for "no abortion never" is still unanswered.

--The argument that the lack of a health exception for the mother is facially valid, but may be unconstitutional as applied, strikes me as bizarre and dangerous. A decision that should be made by patients and physicians will now be made by patients, physicians and judges. Still, that's better than the decision being made by politicians.

--Justice Ginsburg is correct that courts should not be backpedaling to a view of women as especially susceptible to emotional (i.e., irrational) decisions and must therefore be "protected" from "manipulative" physicians or counselors. That's Nineteenth Century thinking, and has no place in the Twenty-First Century.

--The most interesting aspect of the decision to me was the quite clear, even indignant, dismissal — by both sides — of Congress' disgraceful and patently absurd "findings of fact" that accompanied the Partial-Birth Abortion Ban Act of 2003.

The majority: "[S]ome of the Act's recitations are factually incorrect and some of the important findings have been superseded." Moreover: "Although we review congressional factfinding under a deferential standard, we do not in the circumstances here place dispositive weight on Congress' findings. The Court retains an independent constitutional duty to review factual findings where constitutional rights are at stake." And: "Uncritical deference to Congress' factual findings in these cases is inappropriate."

The dissent: "The congressional findings on which the Partial-Birth Abortion Ban Act rests do not withstand inspection, as the lower courts have determined and this Court is obliged to concede." And: "In contrast to Congress, the District Courts made findings after full trials at which all parties had the opportunity to present their best evidence."

For background on the pathetic "fact-finding" by Congress:

Wrote Judge Hamilton, "The oral testimony before Congress was heavily weighted in favor of the Act. ... It is apparent to this court ... that the oral testimony before Congress was not only unbalanced, but intentionally polemic." Similarly, Judge Casey, in a particularly scathing critique, found that "Congress did not hold extensive hearings, nor did it carefully consider the evidence before arriving at its findings. ... Even the Government's own experts disagreed with almost all of Congress's factual findings." All three judges not only disagreed that Congress's findings were entitled to the level of deference that Congress wanted, but found them, time and time again, to be unsupported by the evidence presented to Congress and patently unreasonable.

Justice should never defer to a lie, and judges should never defer to liars. Which is why a presumptive judicial deference to "legislative intent" is not only preposterous but also dangerous. (For a less monumental example, see this post.)

The greatest threat to a free society is a lack of "activist judges." This case is regrettable proof of that.

The case is Gonzales v. Carhart ("Carhart II"), No. 05-380 (April 18, 2007) (PDF - 73 pages)

I spent much of the past 24 hours reading through the various editorials and commentaries regarding Gonzales v. Carhart ("Carhart II"), No. 05-380 (April 18, 2007). Most repeat the same (old) points on either side of the specific E&X or general abortion debate (i.e., not much new or useful).

One exception -- two really -- from pro-choice activist Lynn M. Paltrow in The American Prospect:

Perhaps in the only good news that can be culled from the opinion, it constitutes the death knell of one of the anti-choice movement's favorite political ruses. For years the anti-abortion movement has argued that Roe v. Wade was wrongly decided, in part, because it federalized abortion and took power away from individual states to decide how to address the abortion issue. In this way, anti-choice activists implicitly reassured the public that even if Roe were overturned, abortion would undoubtedly remain legal at least in states like California, New York, and Washington.

But in the wake of yesterday's ruling in Gonzales v. Carhart, there is now little to stand in the way of a federal law banning abortions everywhere if Roe is overturned. In other words, abortion is not really a question of states' rights, but rather of controlling all pregnant women regardless of the state in which they live.

This was exactly my point in my preview of Carhart II back in February 2006 -- what I call the "World Without Roe" Lie. Overturning Roe v. Wade would not "send abortion back to the states." It would send it back to Congress. And although the current Democratic Congress might never pass a "Federal Right to Life Act," the last Congress certainly would have -- and who can guarantee that future Congresses wouldn't?

(And even if abortion were "left to the states," the recent experiment in unbridled majoritarianism -- the bigoted same-sex-marriage bans -- should be evidence enough that some things should not be left to the states -- should not be left to politicians at any level. A right either exists or it doesn't, and should never be put to a legislative -- or popular -- vote.)

Second:

If the government can choose to advance fetal interests over the pregnant woman's health in the context of abortion, why can't so-called "fetal rights" prevail in the context of birth?

In fact, this argument is already being used to justify court-ordered Cesarean sections in cases where physicians believe that a c-section will prove more beneficial to the fetus (this despite the fact that c-sections constitute major surgery and pose increased health risks to the pregnant woman and in some cases the fetus as well).

This I had not contemplated. Can Carhart II indeed be interpreted to mean that methods of delivery, as well as methods of abortion, can be regulated in the context of elevating the interests of the unborn child over those of the mother?

And of course, what about issues like drinking or smoking while pregnant? Can such behaviors that are generally deemed "not in the best interests of the fetus" be criminally punished under Carhart II?

That simply cannot be right.

As I argued yesterday, D&X -- "partial-birth abortion" -- pushes the envelope of abortion procedures, intuitively if not scientifically. It has been described as being as close to infanticide as is medically possible. To the extent that Carhart II is self-limiting to facial challenges on the prohibition of that procedure, it is arguably forgivable. But to the extent that it opens doors for further abrogation of personal reproductive autonomy, it is most certainly unforgivable.

George Will makes two and a half fundamental mistakes in his column today about the world before and after Roe v. Wade:

First, the world before Roe:

Because of the court's supposedly therapeutic intervention in the nation's supposedly inadequate democratic debate about that subject, the issue still generates an irritable irrationality that was largely absent before 1973.

Then, America was operating under a regime of moral federalism. In the absence of ukases from the federal judiciary that generate continent-wide eruptions of tension and anger, many states were reexamining their abortion regulations, and many were relaxing them.

This is all entirely beside the point. There is either a right to early-stage abortion or there is not -- "democratic debate" be damned. If there is such a right, then by definition the very existence of any "democratic debate" on the subject is an affront to the Constitution and an abomination to individual rights and human dignity.

The "debate" should therefore have been limited to that underlying question from the outset: Is there such a right to early-stage abortion, not whether the (facially improper) "democratic debate" was "inadequate." And that debate should have been the exclusive domain of judges in the first place. The Roe court was not usurping anything except illegitimate majoritarian abuses of legislative authority.

With that in mind: Be as Bork or as Thomas as you want about answering the question of the purported underlying right at issue. Oppose the "right to early-stage abortion" as having no basis in the Constitution if you wish. Mock the Ninth and Fourteenth Amendments if you wish. Denounce "penumbras and emanations" if you wish. But don't complain that the courts were usurping "democratic debate." Where individual rights are concerned, it is the very presence of "democratic debate" that is "inadequate." The Court may have wrongly decided Roe, but it did not wrongly hear Roe.

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Second, the world after Roe:

Many, perhaps most, Americans, foggy about the workings of their government, think that overturning Roe would make abortion, one of the nation's most common surgical procedures, illegal everywhere. All it actually would do is restore abortion as a practice subject to state regulation.

As I have blogged repeatedly, and as the recent case Carhart v. Gonzales conclusively demonstrates, overturning Roe would not "send abortion back to the states." It would send abortion back to Congress -- with unambiguous (to non-libertarians, that is) authority to regulate it however it saw fit. Before the 2006 election, that would have meant the "Federal Right to Life Act." After the 2008 election, it would mean the "Federal Right to Choose Act." But above all, it would not mean "let the states decide."

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The half-mistake Will makes is using the word "ukases." It's quite simple really: Any word I have to look up does not belong in an op-ed piece. Or am I being too Colbertian?