Wednesday, April 18, 2007

Partial-Birth Abortion Ban: Very Modest Decision

It was a pleasant (but not so surprising) surprise to read this afternoon that the Supreme Court upheld the federal ban on partial-birth abortions. Not so surprising, because it was time for Justice Kennedy to burnish his credentials as a "conservative," so he swung that way. Even so, he is thoroughly unreliable for prolifers.

As I read the news reports, the decision was extremely narrow--it didn't definitively uphold the law; it only said it couldn't find a basis to overturn it "on its face." It left open the possibility of still striking it down, as applied; although what some are saying is that it may be rather hard to do that, in practice.

The rhetoric of the pro-abortion lobby, and the four justices who take the absolutist pro-abortion position, notwithstanding, it very much remains to be seen what this means to Roe v. Wade and related jurisprudence. The good news is, the state of abortion law hasn't gotten worse, and it has gotten marginally better. But I remind you: Justice Anthony Kennedy is entirely unreliable. So don't think about this logically or in terms of legal reasoning, as if the reasoning in this case somehow makes something else more likely.

It is also far too early to say this means Justice Alito and Chief Justice Roberts are the stalwarts they have been promised to be. By definition, an abortion decision that gains Kennedy's vote is the weakest, least impactful decision possible; all we know is that Roberts and Alito agreed. They may be great guys, but we still don't know that--and the great hope was that they'd help overturn Roe; and this tells us almost nothing in that regard.

It is essential that prolifers keep their eyes on the true goal, which is overturning Roe,, legislatively or judicially, and opposing all abortion. The Partial-Birth Abortion Ban, which I supported, was and is an extremely modest law that was worth pursuing, but it will prevent extremely few abortions. It must not be understood as a great accomplishment, but rather as a tiny step in a long journey.

We won a battle, a very modest battle; it's not V-J Day.

6 comments:

Anonymous said...

while overturning Roe and Bolton are laudable goals, the trouble all really started with Griswold vs Ct - the decision that first identified a 'right to privacy' - albeit this one was connected to contraception...

Victor said...

Well gee, Padre. I can imagine what you were like on other days:

Father Martin Fox, on Nov. 9, 1989...
"The collapse of this barrier is really just a very small step in the integration of the two Germanies. There are still enormous gaps in living standards that cannot be filled except by more unemployment in the former East, rising inflation in the former West, or both."

Father Martin Fox, on Sept. 2, 1945...
"This phase, thanks to the newly destructive weapons developed by both sides at the end of the conflict has merely set the stage for 45 years of terror, with the world divided into hostile camps, led by the one part of the victorious coalition, having typically fallen out over the spoils of this war."

Father Martin Fox, on Oct. 7, 1571...
"This temporary victory over the Mohammedan fleet does not end their heresy. Worse, it leaves the Saracen and other barbaric hordes consumed with a bitterness they will remember for centuries and us with the complacency of thinking we have beaten them off forever."

Sara said...

It is essential that prolifers keep their eyes on the true goal, which is overturning Roe,, legislatively or judicially, and opposing all abortion. The Partial-Birth Abortion Ban, which I supported, was and is an extremely modest law that was worth pursuing, but it will prevent extremely few abortions. It must not be understood as a great accomplishment, but rather as a tiny step in a long journey.

We won a battle, a very modest battle; it's not V-J Day.


I agree Fr. Fox, this is but the first step. I haven't had time yet to read through the entire opinion, but it is definitely a step in the right direction.

On an interesting note, there are 5 Catholics on the US Supreme Court and guess which 5 justices just happened to be the majority?

Father Martin Fox said...

Victor:

Your comments are funny -- and fairly apt in depicting my skeptical approach to these things.

That said, I stand by my analysis: I don't consider this a decisive moment anything like the fall of the Berlin Wall, or the signing of the surrender of Japan, etc.

That is, if that was the point you were making; I realize you might merely have been trying to make fun of me!

Victor said...

Make fun of a priest? Moi? Never. Never, I tell you. Never.

It is undoubtedly the case, Father, that even the greatest events have their downsides such as the ones I detailed (accurately in themselves). And the reverse is true also (the Holocaust was a huge factor in the founding of Israel).

I agree with most of what you said about the marginality of this PBA law -- I think I even called it "chipping at the margins" when we infamously met last year. While the figures of several hundred children saved are not be sneezed at, it is also right and fair to point out the procedure's marginality.

But the symbolic value of the decision is enormous. It's not simply that an abortion restriction was upheld, but that the Court rejected the sophistical arguments put before them -- this is what all the "on its face" nonsense was about. The PBA law was the first federal law restricting abortion (that I know of) to pass court muster. There are now four votes to overturn Roe and a fifth vote open to various restrictions (you disagree apparently), and this was the season's first fruit of that (I think) fact. There's also other issues -- there's now more reason than ever to think we might not get gay marriage shoved down our throats, the Pledge might stay in the schools, etc. This decision is the first proof that Alito and Roberts are voting as we want them to. And that Kennedy can do the right thing even if unreliably so.

To overextend the World War 2 analogy ... the decision was not VJ Day. But it certainly was Midway. How can a decision that prompted the reactions it did from Tojo, Yamamoto and Hirohito -- i.e. Hillary Rodham, Kate Michelman, and Rosie O'Donnell ("5 Catholics? What happened to separation of Church and State?") etc. -- be anything but glorious?

With all that said, I do think Wednesday was the day to rejoice -- both for the decision in itself and what it likely augurs for the Roberts Court on other matters, present and future.

Besides, if I just wanted to make fun of you, I would have sang this Gilda Radner song.

Bob the Ape said...

To beat the WWII analogy completely to death, I wouldn't call it Midway; I would call it (and even this depends on how the story ultimately unfolds) the Doolittle raid: a morale-building pinprick with almost no tactical or immediate strategic impact but which did knock the enemy so off-balance that they never fully recovered (and did make Midway possible).

Meanwhile, let's keep praying.