Bench Memos

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The Morning After


This Wednesday, the morning after Election Day, the Supreme Court will hear oral argument in two cases (Gonzales v. Carhart and Gonzales v. Planned Parenthood) that present the question whether the federal Partial-Birth Abortion Act of 2003 is constitutional.  These cases provide one stark illustration of the significance of which party controls the houses of Congress.  Disillusioned voters should keep this fact in mind, lest they behave irresponsibly on Election Day and come to rue it on the morning after—and in subsequent years.


Here are some basic points:


1.  Partial-birth abortion is a method of late-term abortion in which the abortionist dilates the mother’s cervix, extracts the baby’s body by the feet until all but the head has emerged, stabs a pair of scissors into the head, sucks out the baby’s brains, collapses the skull, and delivers the dead baby.  According to estimates cited by the Court in Stenberg, up to 5000 partial-birth abortions are done every year in the U.S.  (NRLC has more information.) 


2.  In its notorious 2000 ruling in Stenberg v. Carhart, the Court, in an expansive application of its (erroneous) abortion precedents, struck down, by a 5-4 vote (with Justice O’Connor in the majority), Nebraska’s partial-birth abortion law—and, by implication, all the other efforts by states throughout the country to prohibit partial-birth abortion.


3.  In 2003, Congress enacted a federal ban on partial-birth abortion.  In the Senate, Republican support for the ban was almost unanimous (47-3), whereas Democrats opposed the ban by nearly a 2-1 margin.  It seems clear that, if the Democrats controlled either House, the bill would never have been permitted to come to a vote.


4.  Thanks to the successful Senate confirmations of Chief Justice Roberts and Justice Alito, the Supreme Court is now well positioned to overrule or distinguish Stenberg and to uphold the federal ban on partial-birth abortion. 


5.  Strong sentiment among the voters about the proper role of the courts—and the existence of a majority of senators who shared (or were at least responsive to) that sentiment—contributed critically to the successful confirmations of Chief Justice Roberts and Justice Alito. 


By the way, among the minority of Democratic senators who voted in favor of the Partial-Birth Abortion Act of 2003 were two senior members of the Judiciary Committee, Pat Leahy and Joe Biden, and the current minority leader, Harry Reid.  These three clearly understood the ban to be constitutional, so the partial-birth abortion cases give Chief Justice Roberts and Justice Alito a relatively rare opportunity both to rule correctly as a matter of constitutional law and to embrace the position taken by Senators Leahy, Biden, and Reid.   


Tags: Whelan


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