There They Go Again

Two hundred eighty-two members of the House and sixty-four senators voted to ban partial-birth abortion, a grotesque procedure in which a child is partially born and then his skull crushed -- infanticide. The president signed the bill into law with much fanfare last fall, but even before the ink was dry, pro-abortion groups filed challenges in Nebraska, New York, and California. And Tuesday a California judge declared the law unconstitutional. Judge Phyllis Hamilton ruled that the partial-birth abortion ban "poses an undue burden on a woman's right to . . . an abortion" -- that the right to abortion is paramount, and it's irrelevant that the fetus suffers. There are times when you just want to scream, and for me, this is one of them. Now it's true that in Roe v. Wade the Court found an implied "right to privacy" which protected the right to an abortion, and a chain of subsequent decisions confirmed that right. So Judge Hamilton is correct, so far as she goes. But even if the right to an abortion was a legitimate right -- and that's still in dispute, in my opinion -- all constitutionally protected rights are limited. There is a right to bear arms under Article 2, but don't bring a gun to the airport. The right against unreasonable search and seizure is often modified in extreme cases or when a court holds that there has been a probable cause for government intrusion. The right of free speech is protected, but as Justice Oliver Wendell Holmes famously said, you can't shout "Fire!" in a crowded movie theater and claim the right of free speech. So what is it about abortion? Judge Hamilton is claiming that we can't have any limits at all on that right -- that it's sacred. This is, at best, a novel constitutional doctrine. Abortion, after all, is a medical procedure and should be subject to medical regulations. Sworn testimony indicates that partial-birth abortion is never required for a mother's health. It's purely elective and chosen by women who, after six or more months of pregnancy, don't want their child. Should we say that there are no limits on what doctors can or cannot do in this or any other procedure? Why should normal health and safety standards -- always subject to government regulation -- turn out, in this case, to be "an undue burden on a woman's right to choose"? The logic of the decision is appalling. It says that the people have no right to make any laws regulating the definition and safety of a medical procedure that could in any way interfere with a woman's easy access to an abortion, and that if they do, the legislative function simply slips from the Congress over to black-robed judges. During slavery, Abraham Lincoln said that he would not recognize the Dred Scott decision legalizing slavery. One of these days, somebody is going to have to do the same thing with the judiciary on this issue. What we are seeing is a usurpation of legislative authority and an infringement on the right of the people to self-govern. I hope there's a public outrage over this. As for me, I will not quit fighting. There are two more district court cases coming. Eventually this will all end up in the lap of the Supreme Court -- another reminder, by the way, of why judicial appointments are a critical issue in this year's elections. The lives of the innocent depend on them -- so does constitutional sanity. For further reading and information: "Federal judge: Late-term abortion ban unconstitutional," CNN, 1 June 2004. See BreakPoint commentaries: "Hypocrisy on Parade"; "Offending Human Dignity"; "The Truth Comes Out"; and "Never Give Up." See the "Worldview for Parents" page "Big Business." Charles A. Donovan, "Good Things to Life," BreakPoint Online, 15 April 2003. Robert P. George, Clash of Orthodoxies (ISI Books, 2001).

06/2/04