The partial birth abortion decision

One doesn’t even have to read the Supreme Court’s partial birth abortion decision to know that it is entirely consistent with the Left’s beloved Roe v. Wade.  Contrary to most people’s assumptions about Roe v. Wade, that case does not create an unfettered right to abortion.  Instead, it does a balancing act, looking at the State’s interest versus the woman’s interest over the length of the pregnancy.  In the first trimester, when the fetus is not viable outside the womb, the balancing favors the woman’s right to choose how she wants to handle her pregnancy.  In the second trimester, as the fetus nears viability, the balance begins tipping in the State’s favor.  And, in the third trimester, when the fetus is viable, the State’s interests may triumph:

With respect to the State’s important and legitimate interest in potential life, the “compelling” point is at viability. This is so because the fetus then presumably has the capability of meaningful life outside the mother’s womb. State regulation protective of fetal life after viability thus has both logical and biological justifications. If the State is interested in protecting fetal life after viability, it may go so far as to proscribe abortion during that period, except when it is necessary to preserve the life or health of the mother.

So, although today’s decision is being played as a landmark ruling in favor of conservatives (“The Supreme Court’s conservative majority handed anti-abortion forces a major victory Wednesday in a decision that bans a controversial abortion procedure and set the stage for further restrictions.”) it is, in practical fact, nothing more than a recycling of principles already articulated in Roe v. Wade — and I say all this not having read the opinion itself, but being in the enviable position of actually having read the seminal 1973 case.  So, no matter how Kennedy phrased the case (and I have no idea how he did phrase it), he didn’t take away any rights  already granted in Roe v. Wade, a case which more than 30 years ago ensured that, near the end of the pregnancy, the State’s interests, not the woman’s, can be given primacy.

By the way, I seem to have the advantage over Hillary, whose press release shows that she’s more influenced by popular perceptions than actual Constitutional law:

Washington, DC — “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. It is precisely this erosion of our constitutional rights that I warned against when I opposed the nominations of Chief Justice Roberts and Justice Alito.”

Just to make Hillary’s error clear, let me reiterate that, as the quotation from Roe v. Wade itself shows, there is no absolute Constitutional right to abortion in the third trimester.

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  • JJ

    It’s amazing, as so many things often are (look how many people are quite convinced they know what Darwin said), how many people – Hillary would be a fine example – think they know what the Roe decision said, as compared and contrasted to how many actually do know.

    I haven’t read today’s decision either, but it is hardly new ground, or a “victory” for anyone – it’s a reaffirmation of what previously existed.

  • Terry Trippany

    The aspect of this case that I find as being in the realm of Landmark status is what it actually didn’t do. It didn’t legislate any new rights which is a good thing. In fcat I believe that it reaffirms that the appointment of Alito and Roberts to the bench helped align the courts role within the model of constructionists.

    The concurring opinion by Thomas and Scalia is also very promising in that it opens the door to Roe v. Wade (at least in sentiment). Here is what Justice Thomas wrote:

    I join the Court’s opinion because it accurately applies current jurisprudence, including Planned Parenthood of Southeastern Pa. v. Casey, 505 U. S. 833 (1992). I write separately to reiterate my view that the Court’s abortion jurisprudence, including Casey and Roe v. Wade, 410 U. S. 113 (1973), has no basis in the Constitution.

    Not being a lawyer I would be interested in your take on my articles surrounding this case that I wrote after sifting through the 50 ish page decision.

    SCOTUS Delivers Pro-Life Victory – Is Roe v. Wade Next?

    Supreme Court Upholds Partial Birth Abortion Ban

    The first link really has more of my thoughts and the second is more of an analysis.


  • Jauhara al kafirah

    Not to throw gas on this volatile topic, but I notice that many of the women screaming for unfettered rights to abortion at any point for any reason during a pregnancy:
    1. Seem rather old to even conceive, let alone actually getting the resultant abortion, yet continue to speak on behalf of those who are of the age to do so. And they:
    2. Never seem to address the point that worldwide, abortions and infanticide are responsible for the genocide of the female population in much of China and India. Nor do they ever address the system of honor-killings and mu’ta marriages, that is, legalized prostitution/temporary marriages of very young girls to much older men in Muslim countries. Nor do they have much to say about the rape laws in lands ruled by sharia, or the high suicide rate of women in the Middle East, or even the fact that in the west, the savagery against women continue thanks in large part to multiculturalism. Nor do they speak out against the continued slave trade as it exists in the UAE and in QATAR and OMAN of young, mostly Iranian girls, but damn, if’n they don’t turn out in force with the coat hangers when they think someone’s going to mess around with their empty, barren wombs.

  • Jauhara al kafirah

    Sorry if I sounded long winded and confusing. I meant to specify the muslim immigrant populations in Europe, where women still haven’t achieved the full status of freedom that their western sisters have.

  • Zhombre

    I can’t believe what I’m reading: somebody on the internet actually apologizes for being long winded and confusing. Amazing.

  • Jauhara al kafirah

    I blame others, Z.

  • Zhombre

    Don’t get me wrong. My hat’s off to ya. Best, Z

  • ymarsakar

    Wasn’t long or confusing at all, Jauhara.

  • Jauhara al kafirah

    I wasn’t offended. It was indeed a screed, Z. I guess the hypocrisy of feminists has me so galled. My eyes want to shoot blood sometimes.

  • Bookworm

    Okay, Jauhara, I totally get (and agree with) the sentiment, but that’s not an image for the squeamish. 😉

  • Jauhara al kafirah

    I’ll try not to blink in your general direction, Book!

  • Zhombre

    Jauhara, here’s another image not for the squeamish:

  • Jaclyn

    Abortion should be illegal unless of coarse the victim is sexually assulted

  • Panagiotis