How the Left Blew the Partial Birth Abortion Case

They could have won, but they lost. The pro-choice crowd, which fought and lost the most recent battle, should know they could have won. No one in the media will talk about it, because it just seems too technical to them. But it's really not that complicated.

The Supreme Court of the United States came out this week with its decision as to whether the federal law banning certain partial birth abortions (Gonzales v. Carhart) was constitutional. Although the law is called the Partial Birth Abortion Act it actually bans only what is known as intact dilation and extraction (D&E), as opposed to standard D&E, another type of partial birth abortion.

Here’s the difference. In standard dilation and extraction, the most common procedure in the second trimester, the cervix is dilated, the physician enters pulls the fetus out, usually ripping it apart. This often requires going back in multiple times to get all the pieces.

In intact D&E the body is pulled out whole or nearly whole, and the skull pierced or crushed so that it can be pulled out.

I don’t know why intact D&E is more horrific to people than standard D&E. As someone said to me once when we were arguing about the psychological differences, if any, between male and female rape – how flat can you pound a rock? They are both hoirrific. Nevertheless, activists have targeted intact D&E since the federal act banning it was passed in 2003.

Whatever your views on abortion in general there is a much better chance that you have less favorable feeling about partial birth abortion. In January 2003, before the act was passed, a survey by CNN/USA Today/Gallup showed that 70% of those surveyed favored outlawing partial birth abortion unless it was necessary to save the mother’s life. Later that year they repeated the survey minus the exception for the mother’s life. Not much difference as 68 % still favored outlawing it. That’s relatively consistent with many other polls.

So the question before the court wasn’t whether abortions in general should be legal under Roe v. Wade or the case that further defined the law surrounding abortions, which we will just call Casey. It’s whether the new law, banning this certain type of partial birth abortion was an undue burden on a woman’s pre-viability right to an abortion , which is the standard Casey used.

Casey also got rid of Roe’s three trimester approach and just held that before the fetus was viable out of the womb, abortion could not be barred, but once it was viable the state’s interest in the fetus’ life was increased, and restrictions could be had.

Cases have previously come before the court to determine whether certain restrictions, like requiring minors to notify their parents, or a 24 hour waiting period, or Nebraska’s partial birth abortion ban, were undue burdens or not. There have been varied results. However, Nebraska’s law was shot down not because it was an undue burden but because it did not have an exception for the mother’s life and health.

Unlike the Nebraska law, the new federal law has an exception for a women’s life but not her health. Anti-abortion activists claim that their really is no risk to the women’s health that would be abated by having this procedure. So congress found. So the Supreme Court substantially agreed. Disagree if you like. It’s not what I am after here.

The Supreme Court majority held that the law was not unconstitutional. The opinion was authored by Justice Kennedy, who now, with Justice O’Connor gone, is the ultimate swing vote. However, his vote is consistent with his vote in the Nebraska case, where he dissented. Justice Ginsberg wrote the dissent for herself and the other three justices who joined her.

Naturally, much is being made of the fact that Justice Samuel Alito, who replaced O’Connor, voted with the majority here. This is precisely what the pro-choice crowd was afraid of. They are certain that Roe/Casey is endangered.

What interests me, and what the media has ignored, is that the plaintiffs probably had one, possibly two votes from a very surprising place. But they blew it.

Let me explain. Congress can not simply make any law that it wants. It is given certain powers in the constitution (Article 1, section 8, if you care). Those powers have been greatly expanded over the last two centuries due to what’s known as the necessary and proper clause (which we will skip here) and the expansion of what is known as the commerce clause (which is what we are talking about).

The commerce clause allows the federal government to make laws involving interstate commerce. Overtime, that has gone from what seems like interstate commerce to everyone, to cover things that seem like they have nothing to do with interstate commerce. However, the Supreme Court has ruled that anything that even indirectly affected interstate commerce or which made it easier to regulate it was covered.

Sometimes it seems the federal government can, through this avenue, do whatever it wants. Still, the court has drawn some lines. For example, the court has said that federal laws controlling gun free zones around schools, or the Violence Against Women Act were found to have nothing to do with interstate commerce at all. None of those cases were about whether they were good laws or not, but whether it was the state’s business or the federal government’s business to regulate these matters.

So, now to the nub of things. Who might have voted to strike down this law and gladden the hearts of pro-choiceniks everywhere. The answer is, those two liberal bugaboos, Antonin Scalia and Clarence Thomas, two very conservative judges who believe that Roe v. Wade and Casey were totally wrong and should be overturned.

So, why would I suggest they might have voted against the law. Here’s why. They practically said so. Thomas wrote in his one paragraph concurring opinion as follows:

“I join the Court's opinion because it accurately applies current jurisprudence, including Planned Parenthood of Southeastern Pa. v. Casey. . . I write separately to reiterate my view that the Court's abortion jurisprudence, including Casey and Roe v. Wade . . . has no basis in the Constitution. . . I also note that whether the Act constitutes a permissible exercise of Congress' power under the Commerce Clause is not before the Court. The parties did not raise or brief that issue; it is outside the question presented; and the lower courts did not address it. . . .”

Just as arguing that Roe v. Wade is not good law is important to these two judges, they have also made strong arguments that the court has used the commerce clause to allow the federal government to greatly overreach its constitutional limits - more so Thomas than even Scalia.

In this case, it seems almost impossible for anyone to argue that regulating the procedure in an abortion could affect interstate commerce. Possibly, and only because the commerce clause’s reach has been so greatly stretched, if the law called for a total ban on abortions, it might be argued that abortions decrease interstate markets, as far fetched as even that seems.

But this particular law actually does not ban any abortions. It just tells doctors that they can’t use a certain procedure. There cannot possible be any connection to the interstate commerce clause.

Even if you want to argue that the judges always find a way to do whatever they want, Thomas and Scalia have suggested that they would not do so here and that would be virtually perfectly consistent with Thomas' past opinions and most of Scalia's. Neither he nor Scalia likes the idea of the federal government sticking their neck in where it doesn’t belong, possibly as much as they dislike Roe v. Wade.

Thomas and Scalia together with the five dissenters makes six. Apparently, the plaintiffs’ counsel dropped the ball on this, so gung ho were they on the usual firebrand abortion issues, they missed the commerce clause route.

In other words, they blew it.