Overturning Activism

One week ago today, the state of Virginia became the only place in America where it is illegal to perform partial-birth abortions. The citizens of 16 other states have also passed laws outlawing this barbaric procedure, only to see them, one by one, overturned by activist judges. But Virginia has Judge J. Michael Luttig-a judge who refuses to allow the will of the people to be overturned by judicial fiat. The story began last winter, when the Virginia legislature passed a partial-birth abortion ban. The legislators defined partial-birth abortion as a procedure in which "a doctor deliberately... delivers a living fetus or substantial portion thereof" for the purpose of killing him. But quicker than you could say Roe v. Wade, the abortion lobby sued Virginia in federal court, using the same bogus arguments they've employed in every other state where citizens outlawed partial-birth abortion: They said the law was too vague; that it was unconstitutional because it did not include an exception for maternal health. Well, in all of those 16 states the tactic was successful. In every case, activist judges threw out the law the citizens had passed. Think of it, 16 times! Well, the abortion lobby confidently expected the same thing to happen in Virginia. And at first, they did find a sympathetic judge, Robert Payne, who issued an injunction preventing the law from taking effect. He ruled that it was so vague it could "be interpreted as a ban on abortions of all types." But then Virginia appealed the ruling to the Fourth Circuit Court of Appeals, of which Judge Luttig is a member. Judge Luttig is one of those judges who still believes America is a democracy where citizens have the right to pass laws through their elected representatives, and that, absent a clear violation of the Constitution, judges ought to defer to the legislative branch. So last week, Judge Luttig reversed Judge Payne's ruling. Luttig noted that the Virginia statute was similar to the partial-birth abortion ban passed by the Congress and vetoed by President Clinton. He noted that the "undisputed purpose" of the statute was the ban on partial-birth abortions. And Judge Payne, he said, had found "ambiguity where none exists." Imagine that: a judge actually respecting the will of the people. And this is the second time Judge Luttig has forcefully reminded abortion advocates and their judicial allies of that fact. Just a year ago, Luttig reversed an injunction designed to overturn Virginia's parental notification statute. Not surprisingly the abortion advocates are outraged, and, ironically, they're accusing Judge Luttig of legislating from the bench. All I can say is that we've come to a pretty pass when upholding the democratically expressed will of the people is attacked as judicial activism. So I say three cheers for Judge J. Michael Luttig. Not only has he done the right thing by Virginia's unborn citizens, he's also given the rest of us an example of how a judge is supposed to apply the law. And he's given us hope that this experiment in self-government called the United States can truly be maintained.

07/8/98