The federal court sitting in (of course) San Francisco has struck down the recent federal ban on “partial-birth abortion.”
First, I agree with this decision, but on federalism grounds, not the privacy grounds cited by the Court. Nowhere does the US Constitution grant the national government the power to ban any medical procedure, as far as I can tell. It is interesting that this particular basis for overturning the statute apparently never occurred to the (liberal/statist) federal court in San Fran. Liberal statists are horrified by any reference to the fact that the Constitution grants the national government very limited powers, as taking these limitations seriously would probably require either extensive amendment of the Constitution or the junking of over half of what the national government does.
Second, it is interesting to observe the politics around this decision. The statement by the abortion rights spokesman that whether a fetus feels pain is irrelevant to a woman’s right to choose is utterly tone-deaf, and seems to be telegraphing a belief that at no point does a fetus acquire personhood that would negate or need to be balanced off against the woman’s right to choose. That is a losing position with the American electorate, and probably explains the rather noticeable silence from the Kerry camp.
The doctors probably have the law, and the morality of it, about right according to this article. The seminal Roe decision granted/recognized a right to choose abortion up until the point of viability, and was basically silent after that. I am no abortion scholar, but I do not think that the Supreme Court has ever really expanded on this time period in any explicit way, although it has danced around it in a number of decisions on ancillary and peripheral issues. Doubtless the inveterate Samizdata commenters will refine my understanding of the law, but I think that viability is not a bad place to draw a line on abortion rights. The difficulty is, of course, that technology constantly pushes the point of viability backwards, but that is a discussion for another day.
However, whether the common medical understanding of abortion rights is correct in turn begs the Constitutional question of whether the US Supreme Court had any business overturning state laws on abortion in the first place. The underlying reasoning, relying as it does on “emanations” and “penumbras,” has been endlessly mocked, and rightly so, for it signalled a Court that no longer cared much what the words on the page said, but rather what they wished the words on the page said.
This in turn showed a Court much less concerned with what the Constitution says than with what the Court says. This disregard for the plain meaning of the Constitution, although arguably employed in the service of individual rights in the abortion cases, paved the way for such utter travesties as a Court upholding extensive and explicit restrictions on political speech. Very little of the US Constitution’s substantive provisions concerning the powers of government and the rights of citizens are still operative in any meaningful way, because the primary enforcer of the Constitution no longer cares to apply the plain language of that document.
