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The Court Wants Out
Thursday, May 17, 2012, 10:52 AM
 | @mattcant

What is the Supreme Court’s overarching thinking on the constitutionality of pro-life legislation? Does it even exist, or is it more of a tendency which ebbs and flows over time? It’s a fair question given the Court’s maintenance of Roe and Casey alongside limiting decisions like Webster and Gonzalez v. Carhart.

Teresa S. Collett, writing for Public Discourse, attempts an answer and argues that incremental steps like fetal pain laws are the surest way to clear pro-life legislation with the court system. She then asserts, rather intriguingly, that the justices of the Supreme Court are now ready and willing to take these opportunities:

I believe a majority of the Court, including Justice Kennedy, is looking for an exit strategy from the cultural combat surrounding abortion. In Gonzales v. Carhart, Justice Kennedy echoed the longstanding critique that Roe had transformed the Supreme Court into “the country’s ex officio medical board with powers to approve or disapprove medical and operative practices and standards throughout the United States.” And earlier this year Justice Ginsburg, the most outspoken defender of abortion rights on the Court, is reported to have said that Roe was mistimed, moving too fast in its usurpation of the political dialogue over abortion that was occurring in the states in the 1970s.

Even if a majority of the Court wants to return the question of abortion to the normal legislative process, some justices are reluctant to be seen as abandoning the field entirely. It is important to remember that Justice Kennedy joined in the plurality opinion in Planned Parenthood v. Casey characterizing access to abortion as necessary to “[t]he ability of women to participate equally in the economic and social life of the Nation.” Upholding Pain-Capable Child Protection Acts allows the Court to make incremental progress toward restoring full state authority over the question of abortion, while retaining control, for now, over restrictions dealing with ninety percent of the abortions in this country.

See the rest of Collett’s article here, and read a rejoinder by Paul Benjamin Linton, who delves into the psychology of one-man social issue decision machine Anthony Kennedy, here.

2 Comments

    John H
    May 17th, 2012 | 12:06 pm

    “one-man social issue decision machine” – well played, Mr. Cantirino.

    harry
    May 18th, 2012 | 10:42 am

    The problem with such debates, even though they are engaged in by Pro-Lifers with good intentions, is that they tend to create an illusion of legitimacy for Roe and its progeny. These Supreme Court decisions are not legitimate; they are fundamentally unconstitutional, so discussing whether this or that Act is constitutional according to these court decisions only enhances the deception of this illusion.

    The state simply has no authority to sanction the killing of innocent human beings. To discuss these cases as though the Founders actually intended that the federal government or any of the states would have such authority is absolutely ridiculous. Not even in their wildest dreams did the Founders imagine any such thing. There is just no way such authority for the state is to be found in the Constitution. The Supreme Court could only pretend to find it in an emanation of a constitutional penumbra, and hope everybody was gullible enough to accept such hogwash. We don’t need Pro-Life lawyers discussing this as though Roe and its progeny aren’t hogwash.

    History records a movement towards our founding principles as clearly enunciated in the Declaration of Independence, not away from them. Shortly after the slaves were freed, the states, contrary to claiming the inalienable rights of humanity came from the state and could be withdrawn by it, instead enacted laws to protect the life of the child in the womb, and nobody challenged that with litigation taken to the Supreme Court. This is because everybody understood by then that the very purpose of the state is to protect the inalienable rights of humanity, not to sanction destroying it. Authority such as that claimed by Roe is obviously outside the boundaries of the limited, highly restricted authority the Founders intended to bestow on the government they instituted.

    In order to see the absurdity of this debate one must analyze it without letting the lethal bigotry of our times towards the child in the womb – which afflicts us all to some extent – have its subtle effect on one’s thinking. To help do that, re-read the debate with the idea that we are talking about born children and that “viability” refers to a child reaching an age where it doesn’t have to be a burden on anyone else, but is capable of being basically self sufficient. Actually, this is not all that far fetched considering the fact that “after-birth” abortions are already being seriously considered in some quarters. The Journal of Medical Ethics recently published are article justifying the killing of healthy, newborn infants, “After-birth abortion: why should the baby live?” See:
    http://www.firstthings.com/blogs/firstthoughts/2012/03/01/a-sign-of-the-times-2/

    So, imagine that the U.S. Supreme Court has, due to eugenics-based considerations that include defects not detectable by amniocentesis that don’t show up until later in life, and due to unforeseen mental illness developing in children that also creates a terrible burden for parents, decided that after-birth abortions can be arranged until a child is eighteen years of age. Many children become “viable” (according to the definition given above) long before that, and some people feel it is so emotionally traumatic for the child, when it is old enough to understand what Mom and Dad have decided to do, that after-birth abortions become “cruel and unusual.” With this imaginary scenario in mind, consider this debate, imagining that the court cases cited were in regard to such after-birth abortions. I have modified the text of a few paragraphs such that they fit our imaginary scenario but maintain the gist of the arguments made, to provide an example of just how such arguments sound without contemporary bigotry affecting our thought.

    How does the following sound?


    Paul (and I address him in this manner to evidence our friendship and mutual respect) criticizes my support of the Prevention of Emotional Trauma Act on four grounds. First, he argues that these laws are unconstitutional under current U.S. Supreme Court precedent. Second, he claims that the Court, and Justice Kennedy in particular, are not likely to accept the capacity to experience emotional trauma as an alternative basis for restricting the right to after-birth abortion. Third, he reasons that the right to be protected from emotional trauma is less weighty than the right to be protected from lethal assaults. Therefore, he argues, the lesser right is insufficient to sustain a legal prohibition of after-birth abortion that the stronger right cannot justify. Fourth, he notes that the right to be free from severe emotional trauma can be adequately addressed by less restrictive means than prohibiting after-birth abortions.

    Paul is simply wrong as to his first point. The Court has never directly addressed whether preventing emotional trauma in children is an adequate independent basis for limiting after-birth abortions. It has, however, repeatedly noted that changes in psychiatric knowledge and technology may require changes in its approach to after-birth abortion. In Gonzales v. Carhart, when reviewing the federal “one last parental scolding of the child for being defective as part of the after-birth abortion procedure” ban, Justice Kennedy noted that legislatures have “wide discretion to pass legislation in areas where there is medical and psychiatric uncertainty.”

    Or this?


    Under controlling Supreme Court precedent, first announced in Roe v. Wade (1973) and reaffirmed in Planned Parenthood v. Casey (1992), states may not prohibit after-birth abortion before viability. But the Prevention of Emotional Trauma Act prohibits after-birth abortions one to two years before viability. According to current medical practice, a child is normally considered “viable,” i.e., capable of sustained survival with or without parental assistance, some time between the fourteenth and seventeenth years of childhood. Subject to very narrow exceptions, the Prevention of Emotional Trauma Act prohibits after-birth abortions during and after the twelfth year of the child’s life. Collett admits that the Act, to the extent it aims to prohibit pre-viability after-birth abortions, would appear to run afoul of Roe and Casey. So, if the Act could not be upheld under current constitutional doctrine, what is the basis for believing the Court would not strike it down?

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