November 12, 2002


PARTIAL-BIRTH'S WORTH: The Washington Post reports on conflicts among Republicans on how hard to push the pro-life agenda. Glenn Reynolds expounds on the unlikelihood of overturning Roe v. Wade. I find it worrisome that, according to Glenn, the prospect of agitators on the Supreme Court steps might affect the Court's jurisprudence (even in the reverse-psychology manner he suggests). Glenn also links to a Connecticut Law Review article in which he and Dave Kopel point out that directly regulating abortion is beyond the authority of Congress, Constitutionally speaking; the article is "scholarly," meaning written for people who are paid to read it, but the gist is fairly intuititive. Their key point is that there's a strong federalist argument against the Partial-Birth Abortion Ban Act, but that opponents of the ban rarely use it (because the left actually favors extra-Constitutional Congressional authority).

The policy argument that defenders of partial-birth abortion (I forget the medical euphemism) do make is that a ban mustn't threaten the "health" of the mother. Conservatives rightly point out that this language is broad enough to include just about anything, given the general acceptance of the concept of "mental health." The conservative alternative-- protecting the "life" of the mother-- is likewise seen as over-narrow by advocates of abortion as a right. (Doesn't the AP style "abortion-rights advocate" tip the balance toward pro-choice assumptions?) The best argument opponents of a ban have is the mothers who would not be able to give birth again without the procedure-- which is why Bill Clinton had those mothers, holding their children, standing behind him when he vetoed the ban.

So why has no one suggested a modified Partial-Birth Abortion Ban Act allowing for an exception to protect the mother's future ability to conceive? This seems to me to be most in the "pro-life" spirit; I suspect it's never come up because it wouldn't score many political points for either partisan base.

If the Bush judges are such doctrinaire originalists as left-leaning talking heads suggest, a federal ban on partial-birth abortion-- along with one on cloning, stem-cell research, etc.-- shouldn't stand a chance. And if these fights are fought where they should be, in the state legislatures, then it should be no big deal for people who really care about abortion politics (and, more importantly, laboratories that want to do research on blastocysts) to move to a more hospitable state.

Posted by John Tabin at November 12, 2002 01:44 PM