What follows partial-birth abortion ruling coming into focus slowly

By Mark Pattison
Catholic News Service

WASHINGTON (CNS) — Now that the Supreme Court has ruled that the federal ban on partial-birth abortion is constitutional, what’s next?

Although it took 34 years since the Roe v. Wade and Doe v. Bolton Supreme Court cases that permitted abortion virtually on demand in the United States, one nationwide restriction on abortion has now passed both political muster and judicial scrutiny.

Will it take 34 more years to enact another federal abortion restriction?

“I can’t make a prediction,” said David Masci, a senior research fellow at the Pew Forum on Religion & Public Life. “This decision has certainly left open the possibility that states can go back and look at some of the abortion restrictions,” he told Catholic News Service in an April 19 telephone interview.

“From a pro-life or an anti-abortion standpoint, strengthening those laws, possibly — possibly — by removing the health exception” would be one tactic, he said.

Pro-lifer supporters argue that a health exception can be used to justify any abortion.

The partial-birth abortion ban contains only an exception for the life of the mother.

While state lawmakers may try to write bills to place further restrictions on abortion, one congressman was ready to reintroduce a bill with the intent of nullifying the Supreme Court’s April 18 ruling. Rep. Jerrold Nadler, D-N.Y., said he would reintroduce the Freedom of Choice Act April 20. He says the bill would “for the first time” codify a right to an abortion guaranteed under the 1973 Roe v. Wade decision.

“It would bar government — at any level — from interfering with a woman’s fundamental right to choose to bear a child, or to terminate a pregnancy,” he said in a statement.

In an April 18 critique of the Supreme Court decision, Paul Benjamin Linton, special counsel for the Thomas More Society, which filed friend-of-the-court briefs supporting the government in the partial-birth abortion cases, said the ruling is welcome but would have little practical impact.

“First, it is apparent — and undisputed — that a physician who causes ‘fetal demise’ before beginning a partial-birth abortion is not subject to prosecution under the act. Moreover, causing fetal death … generally involves little or no risk to the pregnant woman,” Linton said.

Further, he added, “it is questionable whether any physician who performs the procedure prohibited by the act could be successfully prosecuted, as the (U.S.) district court judge in the Nebraska case, Richard Kopf, noted in his opinion striking down the act. That is because the government would have to prove, beyond a reasonable doubt, that the physician had the intent, at the outset of the procedure, to perform a partial-birth abortion. Proof that a partial-birth abortion procedure was performed, in and of itself, would not suffice.”

Masci suggested, though, that the now reshaped abortion debate will affect the 2008 presidential election.

“It may be harder to triangulate on this issue,” he said. He noted how the 2004 candidates tried to appease both sides. “President (George W.) Bush has said he’s against abortion, but that he recognized that Roe v. Wade is the law of the land, and (Sen.) John Kerry (D-Mass.) supported a woman’s right to an abortion, but said he believed that life begins at conception.”

Masci said the high court’s decision “may make it hard for candidates to find some position on abortion that both appeals to the base — a Republican candidate may have a hard time speaking definitively against abortion but (meanwhile be) reaching out to voters in the center — and, likewise, Democratic candidates may have the same problem,” but in reverse.

Masci acknowledged that, “because of Roe, the court is the ultimate arbiter of what can and cannot be restricted by legislatures. This decision shows the importance — and vindicates people on both sides — of this debate when a Supreme Court vacancy is created, how Justice (Samuel) Alito replaced Justice (Sandra Day) O’Connor (in the court majority) in a very similar decision. I think that, ultimately, is much more important.”

The Supreme Court, in its partial-birth ruling, acknowledged that “in some past decisions, the usual rules for constitutional review were distorted by an unwarranted hostility to legislative efforts to respect unborn human life,” said an April 18 statement by Cardinal Justin Rigali of Philadelphia, chairman of the U.S. bishops’ Committee on Pro-Life Activities.

“We hope today’s decision marks the beginning of a new dialogue on abortion, in which fair-minded consideration will be given to the genuine interests of unborn children and their mothers, to the need for an ethically sound medical profession, and to society’s desperate need for a foundation of respect for all human life,” Cardinal Rigali added.

Other statements took less note of the legal dimension of the decision and looked toward its societal implications.

“Although the ‘right’ to abortion at other stages of pregnancy remains the law of the land, this recent decision will, I hope, move forward in our country the discussion about just what is at stake in any abortion, namely, the destruction of a human life as well as the inflicting of untold grief on the mother who comes to realize that she has allowed her child to be killed,” said an April 19 statement by Bishop Michael J. Sheridan of Colorado Springs, Colo.

“Hopefully we are making a small step toward sanity and basic decency in this beloved nation of ours,” said an April 19 statement by Cardinal Edward M. Egan of New York.

Supreme Knight Carl A. Anderson of the Knights of Columbus said it was a “major milestone in the battle to end the destruction of innocent human life in America.”

The pro-life office directors of several New England dioceses were meeting in Brighton, Mass., when the decision was announced. They took note of the language in Justice Anthony Kennedy’s majority opinion. Pregnant women are referred to as “expectant mothers” and the unborn child called “life within the woman.” The decision also acknowledged the pain that women go through after an abortion.

“The Supreme Court has never spoken this way before,” said Marianne Luthin, director of the Archdiocese of Boston’s Pro-Life Office. “This has the potential to really reframe the entire debate.”

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Contributing to this story was Christine Williams in Brighton.

END

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