Bench Memos

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The Swing Vote on Partial-Birth Abortion


In the course of discussing how Judge Alito will perform at next week’s confirmation hearing, this New York Times article from yesterday repeats the Left’s canard that Justice O’Connor, whose seat Alito will fill, is “the court’s swing vote on abortion.” I wish that were true, but the unfortunate fact is that even after Alito replaces O’Connor, there will still be at least five justices on the Court—Stevens, Kennedy, Souter, Ginsburg, and Breyer—who have embraced the basic Roe/Casey framework.

There is one specific abortion issue on which O’Connor likely is the swing vote—the constitutionality of efforts by numerous states and, in 2003, the federal government to restrict the barbaric practice of partial-birth abortion. 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 its 2000 ruling in Stenberg v. Carhart, up to 5000 partial-birth abortions are done every year in this country.

In 2003, the Senate voted by a large (64-34) margin in favor of a federal ban on partial-birth abortion in 2003. Among the 17 Democrats who voted in favor of the ban were Pat Leahy (senior Democrat on the Judiciary Committee), Joe Biden (another member of that committee), and Harry Reid (leader of the Senate Democrats). Others included Evan Bayh, Robert Byrd, Tom Carper, Kent Conrad, Byron Dorgan, Tim Johnson, Mary Landrieu, Blanche Lincoln, Ben Nelson, and Mark Pryor. If these senators now believe (as I do) that Justice Alito would swing the Court away from the position of unconstitutionality that O’Connor and four other justices adopted in Stenberg v. Carhart, that is a reason that they should vote to confirm his nomination.


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