Thursday, April 19, 2007

Abortion Ruling

Well, the Supremes just had a famous abortion case - limiting so-called partial birth abortion. Both sides hail this as extremely significant. And perhaps politically it will be. But legally, it really isn't. And even if you're pro-life, there really isn't much to get excited about.

Basically, it outlaws a specific procedure, one which wasn't all that common to begin with, and which has a more common alternative method. So all those pro-lifers celebrating, well, they have nothing to celebrate. In reality, this will probably reduce the number of abortions by exactly zero, so those who see abortion as murdering babies, well, no babies will be saved by this ruling. It is the equivalent, to them, of outlawing death by hanging and just replacing it with a firing squad. You still get just as dead.

It also really isn't much of a precedent either. The only reason it passed muster was that because of all of the above - the fact that it really wouldn't stop any abortions, just altered how a few would have been done. Not exactly a precedent to use to reduce the number of abortions. Essentially, the whole thing about 'partial birth' abortions was more political theater (read: bullshit) than anything substantive. Nothing really has changed.

Politically, though, it could be interesting to see the effect. It may very well backfire on the pro-lifers because this may energize the pro-choice base. All for something that really gave the pro-lifers nothing.

The Supreme Court will NEVER overturn Roe v Wade, at least not if the GOP has anything to say about it. It is too valuable as a fundraising vehicle, for one. And it would give an immediate fundraising boost and grassroots boost to the pro-choice movement. It would also make the GOP a permanent minority party. Right now, there are lots of pro-choice voters who vote for Republicans secure in the knowledge that it doesn't matter if the candidate is pro-life because Roe stops them from doing anything. With Roe gone, however, now this would suddenly matter, and all sorts of votes for GOP candidates will evaporate as they actually have to pay a price for their pro-life stance politically that they didn't have to before - in essence, they could benefit from the religious base by declaring themselves pro-life while at the same time they would not have to worry about alienating mainstream pro-choice voters because Roe kept them from actually doing anything to outlaw abortions. This is also why I think Democratic Supreme Court nominees are pretty clear on their support for Roe while GOP nominees are all secretive about it - not because they'd overturn it, but because they wouldn't, for purely political reasons. Of course, once they are on the court, they are there for life, and free to do as they please, so perhaps we could all be shocked, but I'd be willing to bet that in those smoke-filled backrooms, all GOP candidates for the court are carefully vetted to make sure they NEVER overturn Roe.

One of these eons, I'll post something about my own views on abortion. But that is a long post for another day.

10 comments:

liberallatte said...

It feels great to read something that assures Roe is perpetually safe, but I can't be as optimistic as you are.

If the composition of the Supreme Court stays the same, the fate of million's of women's reproductive rights is all up to Anthony Kennedy who has at least supported the fundamental principle of Roe. But if one more right-wing judge replaces a liberal judge (or Kennedy), I fear that everything is over. It scares me even more that 3 of the 4 conservative judges are far younger than all other judges. For many Republicans, overturning Roe would be an end itself not means... and especially Judges have life-long tenure so all these right-wingers in the Court will do as they please without paying attention to political consideration.

DBB said...

You know, even if that somehow happened (and I doubt it would - in fact, I doubt there are more than two votes (Scalia and Thomas) on the court right now who would overturn Roe), in the end it would probably hurt the pro-lifers much more than help them. And it would seriously hurt the GOP. So I'm not really all that worried about it - if they really want to destroy themselves as a political party, let them. The pro-choice side may ultimately turn out better for it.

Hanging Shingle said...

Sorry I'm late to your blog.

I agree that the Republican party benefits greatly from Roe, especially in light of their inability to overturn it. Still, I'm idealistic enough to think our justices will rule based on what they think is correct, not on what is politically expedient.

I hope that if the next president appoints two pro-life justices, the only reason they would maintain Roe will be if they agree with the holding in Casey that important precedent shouldn't be overturned just because you disagree with it.

DBB said...

While that idealism may actually hold true in many cases, Roe is about the most politically charged constitutional issue there is. There's no way politics doesn't play a role with it.

Any illusions about the role politics plays on the high court should have been dispelled by Bush v Gore, a horrendous opinion if there ever was one, based purely on political expediency, not legal principles.

Anonymous said...

The thing is, every "partial-birth" ban I've read about before was shot down by the courts specifically because it was written so broadly that "partial-birth" could have described lots of abortion procedures. They were written that way specifically as a sneaky attempt to ban most surgical abortions.

I'm not familiar with the wording of this ban, but what if it's that way too? What if it scares doctors into not performing abortions that might be legal because they might not count as legal?

And the last time the Supremes considered an abortion case, the majority opinion said they didn't like Roe v. Wade but they didn't want to reverse it YET because it might weaken people's respect for the court if they seemed to flip-flop.

Kristina said...

Ha! I came over here from Feministe, and I must say I agree with your view of Roe. Abortion is political gold, has been, and likely always will be. Like gay marriage in 2004, it seems to be an issue explosive enough to motivate people to the polls and pull out their checkbooks. No politician worth his/her salt will do anything to endanger that. A few in South Dakota made that mistake, and it blew up right in their faces.

A few pander to their electorate when it is "safe" to do so, knowing full well nothing will ever come of their promises.

Incidentally, and unfortunately, this is why the Equal Rights Amendment will also never pass. The Constitution? Apply to women in full? Perish the thought.

Michael Bryan said...

I disagree that the 'partial birth' ruling isn't legally significant. The problem is that, under some circumstances, the 'partial birth' procedure' is significantly safer for the woman. By banning it with no health exception, the death of at least a few women per year is statistically assured. The court's ruling puts the life of the unborn in a legally superior position to that of the mother; this is a significant step toward intruding into the sort of medical decision that you wrote about so moving in the post that brought me here.

This ruling may have shifted the terrain of abortion law enough to make women into expendable birthing vessels in some circumstances; even the slightest move in that direction is unacceptable to me. Only time will tell whether, and how many states will take the Court's cue and begin a new round of legislation crafted to fit the Court's latest exception to a woman's right to reproductive and medical autonomy.

BTW, I do agree with you that the GOP can't afford politically to actually ban abortion. The problem is that a significant and increasingly powerful religious faction in the GOP don't know that, and wouldn't care if they did. It would be folly for us to rely on the cynical self-restraint of the GOP to protect women's rights when there are so many genuine zealots in the mix; political parties don't always act rationally in their own self-interest, just as voters often do not. While you are right that any significant progress toward banning abortion would destroy the GOP, that doesn't mean that one can assume that the GOP will fail to sincerely attempt such progress.

DBB said...

I agree that there are elements within the GOP that will try and ban abortion outright. But they are increasingly finding out that while lip service will be paid to their various, usually religious, concerns during election years, most of the time no action is taken because to actually give them what they want would alienate most of the country and destroy the GOP. The GOP leadership is VERY aware of this. And the GOP is nothing if not authoritarian in their following of the GOP leadership. That's why I think it will never happen. The GOP is too well disciplined at falling the leader, even if the leader is walking off a cliff in all other respects.

The GOP controlled both houses and the white house and yet did not even really attempt to outlaw abortion.

This case, while it may have some significance on the outlying margins of the abortion issue, will not go further than that.

Former Fetus said...

You guys are kidding yourselves. Abortion should have remained a State issue. That is what would happen if Roe v Wade was overturned. Only as a State issue can it be directly voted on by the people. You know, direct democracy. Or are you afraid that the country is a majority pro-life? Take a look at state by state abortion laws pre Roe v Wade. Some states like New York had more liberal laws then with respect to abortion than they do now.

America has a long history of distaste for rule by decree, which is exactly what Roe v Wade represents. Supreme court on high, elected by none, ruling by decree. It goes both ways and the wheels of the court turn very, very slowly.

DBB said...

If Abortion is purely a state issue to the GOP, then why did the GOP Congress pass a federal law outlawing one form of it?

(Forgetting for a second the problems with Congress legislating in an area that they have no authority to do so under the Constitution).