dotCommonweal

A blog by the magazine's editors and contributors

.

Supreme Court Upholds Partial Birth Abortion Ban

Comments

Commenting Guidelines

I wonder how long it will be before the press starts focusing on the fact that the 5 Catholics on the Supreme Court (Roberts, Alito, Scalia, Thomas, and Kennedy (who authored the 5-4 decision)) voted as a bloc. My bet is 1 hour....

I'm sure the press will make something of the religious make-up of the court, but that doesn't mean that everyone will construe this as a "Catholic victory."I know lot of non-Catholics--and non-Christians--who support this ban.So maybe we could spend that hour celebrating this good news?

Let me tip-toe around the Third Rail here, just as an intellectual exercise, mind you, not a declaration of something heretical. But my question is: Much as I loathe so-called PBA, how much of a victory is this for the pro-life movement? And could it wind up a Pyrrhic victory if there is a backlash? My concern is that this decision does not seem to have much to do with abortion, per se. It is about banning a medical procedure, and one that will simply be tweaked (as it has been already) by killing the fetus and crushing the skull inside the womb, then extracting it. Opponents have long conceded that banning PBA will not actually reduce abortions, even of this sort. (Side note: I would view a ban on all third trimester abortions or post-viability--say 22-24 weeks--as a more courageous and effective step.) So is this just a p.r. victory, and is it in fact a victory even in that limited sense?

That the 5 justices in the majority are Catholic should be irrelevant--for just the reasons you state, Jean--but some will no doubt see the decision as a chance to take a swipe at the Catholic Church. The decision really highlights the power Anthony Kennedy now has on the Supreme Court. He's taken over Sandra Day O'Connor's swing vote role, and because he is considered at least a little more conservative than O'Connor was, there will certainly be more instances when the Catholic 5 vote together on issues that are not remotely Catholic in substance or appearance.

David--If I remember correctly, the PBA law upheld today contains an exception that allows the procedure if the mother's life is in danger, so, as you said, the victory may be Pyrrhic. It may be a small yet real victory, however, for a couple of reasons. NARAL and Planned Parenthood and other pro-choice organizations campaigned hard against the law. For decades, they have been victorious in almost all abortion litigation. This victory, if nothing else, demonstrates that they are not invincible on abortion issues. The victory will also hopefully embolden pro-life advocates; it may also be a wake up call to pro-choice advocates. Heightened awareness (and advocacy) on both sides is not necessarily a bad thing. We have never really had a thorough national discussion about either abortion as a "right" or the "rights" of the unborn. The Supreme Court in Roe v. Wade trumped the national discussion by concluding that abortion falls within a right of privacy not specified in the Constitution but nevertheless "penumbral" to other specified rights. That may or may not be true, but the discussion is long overdue IMO.

David, I can't disagree with anything you say.But I guess I'm more hopeful that this ban opens a more productive discussion about late-term abortions in general. Because, really, is third-trimester abortion a lot different from a PBA?Both PBAs and third trimester abortions are also pretty rare. And most are not performed for reasons of rape or incest--areas where there is a lot of disagreement over whether abortion is justified.

Naturally I applaud the protection afforded by this decision to some foetuses, but at the same time I must say that Justice Kennedy's stress on the protection given to women, who, he supposes, may not realize what an abortion by this method entails, comes across as both condescending and irrelevant, and I would add, extremely unfortunate.