Despite Congress recently passing a national ban on partial-birth abortions, a judge in Virginia has overturned a state law which also banned the procedure. The basis for his ruling was that the ban "failed to make an exception for the health of the woman", but apparently the judge isn't aware that the American Medical Association has said that the procedure is never medically necessary.
In recognition of the constitutional principles regarding the right to an abortion articulated by the Supreme Court in Roe v. Wade, and in keeping with the science and values of medicine, the AMA recommends that abortions not be performed in the third trimester except in cases of serious fetal anomalies incompatible with life. Although third-trimester abortions can be performed to preserve the life or health of the mother, they are, in fact, generally not necessary for those purposes. Except in extraordinary circumstances, maternal health factors which demand termination of the pregnancy can be accommodated without sacrifice of the fetus, and the near certainty of the independent viability of the fetus argues for ending the pregnancy by appropriate delivery.Donald Sensing has more on the medical community's view in a post from last year.
When writing the national ban last year, Congress heard testimony from many medical experts and concluded the lengthy preamble of its bill by stating, "For these reasons, Congress finds that partial-birth abortion is never medically indicated to preserve the health of the mother."
Nancy Northup of the Center for Reproductive Rights attempts to use the weight of authority to bolster her side of the debate.
"Courts across the country - including the U.S. Supreme Court - have been clear that such bans are an unconstitutional threat to women's health and lives," Nancy Northup, president of the center, said in a statement Monday.Fortunately for millions of unborn babies, courts are not the highest medical authorities in the nation, nor the highest political authorities. For the medical side of the question, I'll trust the judgement of the AMA. As for the political: in addition to the national ban, more than 30 states have also banned partial-birth abortions, demonstrating that the majority of Americans are against what is essentially infanticide.
Update:
Xrlq comments and links to a post of his from last year that points out that the federal partial-birth abortion ban is blatantly unconstitutional. He's right, of course. The problem I have with his position, however, is that he's failing to see the forest through the trees.
I'm a federalist, but not because I love federalism. I support federalism because I love liberty, and I believe the separation of powers between national and state governments promotes liberty.
There is no more egregious infringement on liberty than murder, and no matter how federal our country may become if it fails to prevent the murder of a million babies a year it isn't successfully defending liberty. Federal murder laws aren't necessary because every state already bans the murder of adults. Ideally, states will also ban abortion and no federal intervention will be required. However, that not being the case (largely due to federal intervention by the Supreme Court), I'm perfectly happy to sacrifice some federalist principles for the larger cause of protecting liberty.
Any Constitutional system that results in the murder of a million babies a year -- regardless of what other liberties it protects -- is fundamentally flawed. The Constitution, and federalism, should serve liberty, and in cases where they don't I will not be bound to defending them.
"Despite Congress recently passing a national ban on partial-birth abortions, a judge in Virginia has overturned a state law which also banned the procedure."
I don't get the "despite" part. What does Congress's passage of the blatantly unconstitutional federal ban have to do with the constitutionality of separate state law?
Oh sure, and if the law gets tossed out because it doesn't fall under the authority of the federal government I'll eat my shoe. You're right of course -- the federal government shouldn't have an anti-murder law or an anti-partial-birth-abortion law. But because of how the courts tend to treat the issue (by ignoring the will of the majority of the people and creating rights out of thin air), I think it's a reasonable step for Congress to show support for the states that have passed bans of their own.
Plus, it raises interesting issues, as you've alluded to. If the law gets overturned for the reasoning you suggest, that will lead to a whole different set of legal victories. Either way it's win/win.
I think it's much more likely that courts will reject the federal ban for spurious reasons.
Finally, I think I'd like to have the feds involved in policing if that's what it takes to prevent a million dead babies each year.
Fair enough, but regardless of how the federalism is resolved, I still fail to see how the "despite" part of your argument comes into play. Either the state law is constitutional or it is unconstitutional. If it is constitutional, it should have been upheld even if there were no federal statute on point. If it is unconstitutional, then the judge was right to strike it down. Congress can't change that result by statute.
Oh, I see. Hm. Maybe it was an inaccurate choice of words. My point was that the fact that there is a national law, in addition to myriad state laws, that makes specific legislative findings in contrary to the judge's position should have counted for more. Congress made specific findings that the judge contradicted. He acted in spite of them.
Fair enough, but he was right to do so. So a Congress intent on banning PBA also "found" that PBAs are bad. Now there's a surprise! Next time, a more liberal Congress might "find" that PBAs are the best thing since sliced bread. Both "findings" are mere window dressing, and warrant exactly the same amount of judicial deference: none.
As an aside, I'd urge you to re-think your position of fair-weather federalism. While it is true that federalism often (though not always) tends to promote liberty, that's not the only reason to support it. The main reason to support it is because it is the law, and the rule of law is itself worth defending, even though it does not always produce the result that you, I, or anyone else may prefer. It's all well and good to dismiss it as a "flaw" when the system produces a different definition of "liberty" or "murder" than yours, but imagine the chaos that would result if all sides took that approach to every issue they cared about.
Last and least, I'm not convinced that federalising abortion is a very wise move from the perpsective of the anti-abortion groups. If Congress has the power to regulate abortion, it also has the power to preempt the states from doing so.
First off, I completely disagree about judicial deference. Under your model we could just abolish the legislature and let judges decide everything. That doesn't sound like a good idea to me.
As for "federalism is the law", take a look around: it's not. Maybe technically, but who cares? Plus, just because it's in the Constitution doesn't mean it can't be changed. That's the whole point of proposing, say, an anti-abortion amendment.
I wouldn't like it if other sides' version of "liberty" or "murder" won out over my own. That's why it's important for me to fight for my interpretation. You're basically saying that I shouldn't fight because I might lose, but the status quo has my side already in a losing position.
Wrong, wrong and wrong.
Wrong #1: I think that judges should defer to legislatures as far as the laws themselves go, but no further. If a legislatures dislikes the courts' interpretation of a statute, it can amend the statute by a simple majority. If it dislikes the court's intepretation of constitutional amendment, the only way to fix that is by amending the Constitution itself. To do anything else would be a flagrant violation of the separation of powers, as it would effectively make Congress the More Supreme Than The Supreme Court Court.
Wrong #2: I don't think the 10th Amendment is a technicality. In a world where everyone "knows" the answer to everything but 90% of the population must be wrong, I like the fact that 50 semi-sovereign states get to test their own theories and learn from each other's mistakes. Right to carry is a good example of this; it has been a tremendous success on a state-by-state basis, but given the national attitudes toward the issue 10 years ago, it would never have gone anywhere at the national level. It might today, of course, but only because we've had the benefits of federalism up to this point.
Wrong #3: I don't expect you to like the result if the majority defines liberty more broadly, or murder more narrowly, than you do. Then again, I also don't expect you to like the result if you think the top marginal rate on regular income ought to be 24% but the majority prefers 39%. The rule of law is a cause worth promoting in its own right; it does not and cannot depend on any particular interest group believing that the "right" law is passed every time. In a society as pluralistic as ours, that will never happen. The best we can hope for is a society where people respect the law because it is the law.
1: History and legislative intent are and have always been important factors used to interpret laws, from the Constitution on down. Findings are a particularly useful way that legislators communicate their intent.
2: Like I said, I support federalism. But I'm not willing to sacrifice a million babies a year just for the sake of the system. That's twice the number of Americans each year as who died in the entire Civil War. It's not worth it, considering there are other systems that could work just as well without such sacrifice. Plus, the current system isn't just, as evidenced by these million murders.
3: I'm not against the rule of law, I'm just saying that the system should be changed, and I'm not adverse to changing it to get results more to my liking. The system isn't perfect. It's pretty good, but as evidenced by the million babies murdered each year on the altar of convenience, there's room for improvement.
1. True, but only if the "findings" and the law being interpreted are contemporaneous. It is irrelevant what today's Congress intends yesterday's constitutional amendment to mean. All that matters is what yesterday's Congress intended, at the time that they enacted it.
2. Who says anyone is sacrificing a million "babies" (most of whom are unrecognizable, argely undeveloped, first term fetuses) on the altar of federalism? Federalism didn't create Roe v. Wade, judicial activism did. If Roe were overruled, abortions would probably remain legal in most states, but for that you'd have democracy to blame, not federalism. Realistically, federalism is the best anti-abortionists could hope for, as it would result in abortion being prohibited in some, though not all, states. If the issue were nationalized, it would be legal everywhere, much as it now is under Roe.
3. "Murder" is a legal term which refers to unlawful killing. For better or for worse, the overwhelming majority of the abortions to which you refer are lawful, so your use of the term "murder" is inappropriate.
1. By my understanding, Congress has the authority to say that "courts must interpret this law in this manner", and unless the interpretation is unconstitutional then the courts are bound. After all, such a prescribed interpretation is basically a whole new law, which Congress certainly has the power to enact.
2. The majority of Americans are in favor of more restrictive abortion controls. I don't think abortion would remain legal in the majority of states. What's more, if some states didn't prohibit murder I would be strongly in favor of the federal government stepping in to do so; likewise with abortion.
3. "Murder" is not a purely legal term, although it's definition is formalized in law. A killing can be immoral without being illegal, and that would still count as murder to me (and most people). I don't know why you raised this point, considering my position is that abortions of convenience should be legally classified as murder; your assertion is the very point of debate.
As for whether unborn babies are worth saving, see "Life: Defining the Beginning from the End" and "Technology and Life's Dominion".
1. I don't know where you got #1 from, but it's simply wrong. Congress has never had the authority to tell the courts how it may interpret a law. The closest thing it can do that, short of repealing or amending the law in question, is to strip courts of jurisdiction to hear cases under it. Even that radical step probably would not undo the precedents that were set beforehand.
2. As to whether or not a majority of states would permit abortion, you may be right, although I tend to doubt that. As to the notion of the federal government taking the hard line on abortion, fuhgeddaboudit. Not gonna happen. That's part of the reason most liberals don't like federalism much.
3. I raised the point because I think that the use of such overcharged rhetoric as "murder" and "babies" does little to promote healthy discussions on the topic. I feel the same way about pro-abortionists who resort to equally slanted phrases like "anti-choice," "a woman's right to control her own body," etc. Besides, not even all unlawful killings are murder. First trimester abortion as "murder?" Not even close. Even in the pre-Roe days, when states were free to outlaw it, none treated it as anything close to murder. Involuntary manslaughter, maybe.
1. If Congress doesn't like the way a court is interpreting a law, it can simply pass another law clarifying the issue. That's all I mean.
2. Opinions are changing.
3. I didn't choose my words to score rhetorical points, I chose them because they reflect my actual beliefs. Just because you disagree with my position doesn't mean my terminology is mere "oevercharged rhetoric".
1. No disagreement there. I stand by my previous point, however, that if Congress wants to correct a constitutional interpretation, it can only do so by amending the Constitution. Thus, a partial-birth abortion statute cannot change the constitutional issues surrounding abortion rights. That's all I was saying.
2. Perhaps so, but as with CCW, I think it's a lot more likely to happen on a state by state basis than it ever could at the national level, all at once. Let Alabama and Mississippi ban abortions, first. Then, if Planned Parenthood's nightmare scenarios about young girls dying in droves from backalley abortions don't pan out, other states will follow its lead.
3. My objection to overheated terms like "baby-killer" or "oppressor of women" has nothing to do with whether I agree or disagree with a particular position. You may personally believe that killing a first trimester fetus is just as bad as killing a born child. That's fine; your opinion is what it is. What is not fine is to impugn the motives of anyone who sees the matter differently, which you do when you effectively label millions of law-abiding women, along with their doctors, as "murderers." I'm sure you don't appreciate it when pro-abortion zealots question your motives for opposing abortion, either. Do unto others...
1. I suppose you're right regarding Constitutional interpretation. Although Congress could always defund the court system or take other drastic measures.
2. Yes, I'd prefer a state-based approach too, but since federal involvement has made that impossible (and federal involvement isn't likely to go away) I'll take whichever argument looks most likely to save lives.
3. A rose by any other name....
2. State involvement in regulating abortion has not gone away altogether. Far from it. Many states regulate abortion much more extensively than Congress would. IIRC, even liberal California prohibits late-term abortions, thereby obviating the need for a more specific ban on a particular procedure. You seem to be in favor of allowing both the federal government and the states to regulate in this area. That's a risky strategy, as it gives Congress the power to repeal all state laws relating to abortion - including those consistent with Roe and its progeny - by a simple majority. Do you trust this Congress, and every future one, not to do that?
I agree with you, in an ideal world, but as a practical matter I'll set aside my ideals right now if it will save lives.