Blind Justices

By DCH

In a 2-1 decision, a panel of the 4th Circuit Court of Appeals overturned Virginia’s Partial Birth Abortion Ban, which had been remanded back to them by the US Supreme Court in Carhart v Gonzales. See NYT story here.

Attorney General Bob McDonnell’s office suggests an appeal to the full 4th Circuit or the Supremes.

I’ve been around for all stages of this fight — nationally & in the Commonwealth (thanks, Delegate Black). I’ve heard every absurd legislative argument but I can’t say I’ve lost my ability to be surprised by the lengths abortion industry professionals and their allies will go to in order to keep abortion on demand the law of the land.

Writing for the majority, Justice Michael says that the Virginia law is too broad because it doesn’t allow an exception for the health of the mother and may place doctors who “accidentally” perform the procedure at risk for prosecution. The reasoning appears to be that this could reduce the willingness of doctors to do late term abortions generally (and so reduce the availability of later term abortions).

Noting that the high court’s Carhart II decision upheld federal legislation which is “materially indistinguishable” from the Virginia law, Justice Niemeyer’s dissent accuses the majority of seeking to circumvent Carhart II and overturn the will of the legislature.

Let’s see if I have this straight.
1) partial Birth Abortion is NEVER medically necessary to protect the life of the mother
2) Virginia law banned the procedure unless it was medically necessary to protect the life of the mother.
3) leftists insist on a “health” exception (which is wide enough to drive a tractor trailer through, can anyone say “mental health”) but, in light of the evidence, the Carhart II court did not think such an exception necessary.
4) Discussion in the decision centers around the possibility that a doctor performing a D&E might unintentionally deliver the fetus “intact”. Apparently, this is a horrible thing if the woman wants a dead fetus and has paid for that result but the law prohibits the doctor from killing the intact fetus at this point in delivery. Poor doc — he now has to deliver a live baby and offer life-sustaining care or risk prosecution. The majority opinion assumes that the abortionist will kill the fetus in such a case.
5) Can’t have that, so we’ll call the doctor’s fear of being prosecuted in such a circumstance an unconstitutional obstacle to a woman’s right to “choose” and once again rule the Virginia Partial Birth Abortion Ban out of bounds.

Note: the two justices who struck down the VA law in this decision were appointed by President Clinton. Does anyone who cares about the power of the bench still want to tell me this election doesn’t matter or that there is no difference between Obama/Hillary & McCain?

This was Barack Obama’s comment on the Carhart II decision:

“I am extremely concerned that this ruling will embolden state legislatures to enact further measures to restrict a woman’s right to choose, and that the conservative Supreme Court justices will look for other opportunities to erode Roe v. Wade, which is established federal law and a matter of equal rights for women,”

and, Hillary Clinton said the following at the time of the 2007 decision:

“This decision marks a dramatic departure from four decades of Supreme Court rulings that upheld a woman’s right to choose and recognized the importance of women’s health. Today’s decision blatantly defies the Court’s recent decision in 2000 striking down a state partial-birth abortion law because of its failure to provide an exception for the health of the mother. As the Supreme Court recognized in Roe v. Wade in 1973, this issue is complex and highly personal; the rights and lives of women must be taken into account.”

By the way, the last 15 years or so of debate over this procedure has helped swing the public mind away from the ‘abortion on demand’ position. 80% of Americans oppose partial birth abortion today and more than 70% believe it should be illegal. The wide availability of sonograms - contributing to the growing body of knowledge about life before birth - has helped strengthen this sentiment.