Wednesday, April 18, 2007

I don't like it, but I don't disagree with it

The Supreme Court upheld the ban on what is known as partial-birth abortions today in a 5-4 decision. While I agree that the government has the right to restrict in this manner, I would hope that the people use the power of their vote to change this law (i.e. petition your congresspeople).

The law seems to be pretty narrow in scope (the violation comes after the following steps: 1. person performing must vaginally deliver a living fetus, 2. must deliver it so the full head is delivered of, if breach, then up to the navel, 3. perform an overt act that kills the living fetus, which must be done separate from delivery, and 4. it must be done "deliberately and intentionally."

Justice Kennedy wrote the opinion, and he appears to have interpreted the Act very narrowly, especially with regard to the scienter ("deliberately and intentionally") requirement. The State would have to prove the intentional delivery to the requisite point AND the overt act were both done intentionally, a heavy burden.

Finally, Justice Kennedy cites Casey, in that the Act, in order to be unconstitutional, would have to place a substantial obstacle in the path of a person trying to get an abortion. Substantial is a key word here, one of those magic words that has an imprecise meaning. Justice Kennedy and the majority, however, held that there was not proof by Planned Parenthood to show that there was a substantial obstacle. I dislike Justice Kennedy's choice of words in Casey, but I understand what he was trying to say, "respondents have not demonstrated that the Act would be unconstitutional in a large fraction of relevant cases." Applied broadly, this goes to ALL abortions, not the limited scope of people trying to secure a D&E (this type) abortion.

I may or may not like the law, but I have a hard time disagreeing with the majority opinion that the law is Constitutional. The right to have an abortion does not imply the right to have the abortion method of your choice. I think the best recourse for those who oppose this law is to appeal to your congressperson.


Bellejar said...

Curious have you read the Carhart cases? There is some relevant information that in some cases (not many at all) this may be a medically safer option for the mother. If the fetus is dismembered in utero as the other procedures make it happen, then bony fragments can pierce the uterus causing rupture.

I don't really think that lawmakers should make medical decisions. Might I add, I don't really care for any abortion procedure (let alone this particular one) and if I had my way none would be necessary. I just have issues about the government interfering in these sorts of decisions.

Steve said...

Your issues regarding government interference is more along what I was aiming at. I think what the government did was legal, but I wish that the government had not interfered the way it did, and I think the appropriate remedy is to use the political process, not the judicial process.