No subject

a wobbly first step

Posted by: Diogenes - Apr. 19, 2007 6:05 AM ET USA 

I'd like to be able to rejoice more whole-heartedly in
yesterday's Supreme Court decision in Gonzalez v
Carhart. But the argument of NROs' Mark Levin strikes
me as uncomfortably plausible. 

I don't understand what all the fuss is about. The
fact is that Anthony Kennedy makes clear that he is
open to a case where the litigant asserts a health
exception to partial-birth abortion. He makes this
clear in several ways, including distinguishing
between a "facial" vs. "as-applied" challenge, and all
but invites such a challenge. That is, he is
soliciting a health-exception challenge. Kennedy also
telegraphs how he'll vote -- with the other four
activists. In short, he says the federal statute,
which excepts partial-birth abortion in cases that
threaten the life of the mother (thereby narrowing the
health exception), is consistent with past court
rulings, but he is prepared to reverse course in a
future case involving non-life threatening health
exceptions. Maybe today's decision will temporarily
chill doctors from performing partial-birth abortions.
But the emphasis here is on word "temporary."
Justice Ginsburg hits at the same point in her dissent
(page 70 of this PDF doc): 


If there is anything at all redemptive to be said of
today's opinion, it is that the Court is not willing
to foreclose entirely a constitutional challenge to
the Act. "The Act is open," the Court states, "to a
proper as-applied challenge in a discrete case."...
The Court appears, then, to contemplate another
lawsuit by the initiators of the instant actions. In
such a second round, the Court suggests, the
challengers could succeed upon demonstrating that "in
discrete and well-defined instances a particular
condition has or is likely to occur in which the
procedure prohibited by the Act must be used."
To what degree is the impact of the decision
jurisprudential, and to what degree is it political?
As Rob Vischer notes at the Mirror of Justice blog,
Justice Anthony Kennedy gives us a lot of his
characteristic mushiness in the majority opinion he
wrote. It's wryly amusing when he's writing for the
wrong side, disconcerting when he comes bearing gifts
(see also philosopher John O'Callaghan's comments
here). To this amateur, it's impossible to guess the
extent to which the rhetorical fluff will affect the
future conduct of courts, but we all might wish there
were more steel in Kennedy's moral reasoning. 

That said, no one can deny that the howls of outrage
we hear are coming from the right places. The editors
of the New York Times are hyperventilating on
schedule, and NARAL and NOW are in full fundraising
mode. The decision has forced the presidential
candidates to flip the abortion card face-up before
they wanted to do so: they have to take a stance
without knowing how it'll poll later on in a two-man
race, etc. Moreover, it's reassuring to see that the
rhetoric of those who oppose the decision is still the
hard-core cant of 1970s feminism, which not only
sounds dated to the fashion-conscious, but will make
it hard for those forced to use it today to portray
themselves as family-friendly moderates in the summer
of 2008. Candidates don't photograph well with blood
on their canine teeth, and plugging partial birth
abortion makes it tough to smile before the cameras in
any other condition. 




ART KELLY, ATM-S
13524 Brightfield Lane
Herndon, Virginia 20171-3360
(703) 904-3763 home
(703) 396-6956 work
arthurkelly at yahoo.com
art.kelly at cox.net
ArtK135 at Netscape.net

__________________________________________________
Do You Yahoo!?
Tired of spam?  Yahoo! Mail has the best spam protection around 
http://mail.yahoo.com