The American Mind

The Supreme Court upheld the federal ban on partial birth abortions:

The 5-4 ruling said the Partial Birth Abortion Ban Act that Congress passed and President Bush signed into law in 2003 does not violate a woman’s constitutional right to an abortion.

The opponents of the act “have not demonstrated that the Act would be unconstitutional in a large fraction of relevant cases,” Justice Anthony Kennedy wrote in the majority opinion.

The decision pitted the court’s conservatives against its liberals, with President Bush’s two appointees, Chief Justice John Roberts and Justice Samuel Alito, siding with the majority.

I don’t know how good the court’s reasoning was. The constitution is mum when it comes to abortion. I hope something was mentioned about this fact, but Justice Anthony Kennedy wrote the majority opinion so I’m not confident.

Justice Ruth Bader Ginsburg wrote the dissent and laments the court “refuses to take … seriously” precedent. When Roe v. Wade was bad law to begin with it’s good to not take it seriously.

I wish abortion wasn’t in the hands of the Supreme Court. It’s not in the constitution but was magically put there by an activist court. I support the spirit and intentions of the law and ruling even if I wish there was a structurally better way to accomplish the goal.

This ruling may finally be the signal that the abortion-on-demand culture is waning. Nationally the number of abortions are declining. Both culturally and now legally pro-abortion activists are on the defensive.

In the end it’s all about saving more of the unborn. That means changing hearts and minds, being kind and supportive to mothers with unplanned pregnancies, and educating people on ethical methods of birth control along with the on-going legal and political fights.

“Court Backs Ban on Abortion Procedure”

UPDATE: Orin Kerr declares the ruling “very narrow.” Casey’s “undue burden” test applied for once to the benefit of the unborn. Kerr quotes this passage from Justice Ginsberg’s dissent:

And, for the first time since Roe, the Court blesses a prohibition with no exception safeguarding a woman’s health.

The woman’s health exception is amazingly broad covering anything including psychological distress. It’s the freight train-size loophole that allows abortion on demand. The exception isn’t when it’s the rule.

Lyle Denniston at SCOTUSblog has a good summary of the majority opinion and dissent. Let me point out Justice Ginsberg’s passionate dissent:

In the course of her dissenting opinion, Ginsburg accused the majority of offering “flimsy and transparent justifications” for upholding the ban. She also denounced the Kennedy opinion for its use of “abortion doctor” to describe specialists who perform gynecological services, “unborn child” and “baby” to describe a fetus, and “preferences” based on “mere convenience” to describe the medical judgments of trained doctors. She also commented: “Ultimately, the Court admits that ‘moral concerns’ are at work, concerns that cdould yield prohibitions on any abortion.”

Besides the decision itself the most currious part of this story is Justices Roberts and Alito didn’t join Thomas and Scalia in declaring “that the Court’s abortion jurisprudence…has no basis in the Constitution.”

Ed Morrissey gives us the political analysis:

Politically, this will energize both sides of the issue. George Bush will get a boost from conservatives now that his appointees have delivered on a basic issue for them. Pro-life forces will begin fighting on a new front, hoping to overturn Roe v Wade with another, more central challenge to the court’s finding of abortion rights in the Constitution. Abortion-rights advocates have evidence for their fund-raising efforts on behalf of Democrats that candidate selection for the presidency and for the Senate make a great deal of difference. This will be Exhibit A in every fundraising letter from NARAL, NOW, and the DNC for the next eighteen months regardless of who wins the nomination in either party.

President Bush should take advantage of this pro-life victory by demanding the Senate controlled by the Democrats get moving and vote on his judicial nominees. His supporters now have a tangible benefit in fighting for conservative judges. He has momentum if he’s smart enough to realize it.