By now, most everyone has probably seen the district court decision invalidating the partial-birth abortion ban. It’s no surprise that the judge in that case invalidated the law. The law did not include an exception for cases where the health of the mother was threatened, and was thus (under pretty clear Supreme Court precedent) unconstitutional.
There has been some interesting internet commentary about the propriety of the decision. Rob Vischer at the Mirror of Justice comments on Judge Casey’s role, as a Catholic judge, in the case. Vischer suggests that Judge Casey’s findings of fact may be helpful for pro-life advocates, despite the fact that the judge was bound by legal precedents. A similar, and surprisingly deferential, analysis was offered at the National Review.
I wasn’t surprised to see the law invalidated. To me, the issue of partial-birth abortion has always been a good illustration of a characteristic of the pro-life movement, which depending on one’s political perspective may be viewed as muleheadedness, hypocrisy, or steadfastness. Despite overwhelming public support for a ban on partial-birth abortion, pro-life politicians have been unable or unwilling to enact viable legislation against it. The law was struck down, just like the last one, because it didn’t have a health exception. The solution isn’t so difficult, guys: Add a health exception. How hard is that? And viola, a constitutional partial-birth abortion ban. Why can’t people get that through their heads?
As indicated above, the answer may be, depending on one’s political perspective may be viewed as muleheadedness, hypocrisy, or steadfastness.
Pro-life advocates probably see it as steadfastness. They won’t bend to the law — they will make the law change for them. (Perhaps some of our pro-life advocates around here can elaborate).
Their opponents probably see this as evidence of hypocrisy. Despite repeated claims about caring for life, pro-life advocates are unwilling to make realistic moves to end partial birth abortion. Instead, they keep trying to leverage the popular opinion against partial-birth abortion, in order to try to milk greater gains from it.
The third possibility is that many pro-life politicians are not cynically trying to leverage an issue, but they are simply too stubborn to see that they have an easy victory within their grasp, and that they only delay passage of a viable partial-birth abortion ban when they try to overreach.
These seem to be the most convincing potential explanations for the fact that, despite strong public opinion against partial-birth abortion, a clear constitutional path to a ban, and a political majority in favor of such a ban — all of which have existed for years — Congress has somehow failed to enact a viable ban, yet again.