In Abortion Battle, the Tie Went to the Congress
Legal scholars and historians are going to be fighting for decades over the scope and meaning of yesterday's big abortion ruling. Journalists already are offering their own perspectives on one of the biggest cases of the term and certainly the biggest victory for anti-abortion advocates in a generation. And of course the rest of you already seem to be fighting over it (if the comments to my last post are any indication).
Me? Putting aside the emotional nature of this debate for partisans on both sides, I find the most fascinating aspect of the ruling to be the way the Court's majority upheld the federal ban against these sorts of abortion procedures despite the fact that no fewer than three different trial judges, and three separate appellate courts, determined after three hotly-contested trials that the procedure in question often is the most appropriate medical procedure. In other words, when given the choice between the suspect Congressional findings that purported to support the law (I say "suspect" because every court but the Supreme Court said so) and the findings of the federal judges who held long and complicated trials, Justice Anthony M. Kennedy and Company chose the former over the latter.
And whereas the Court seven years ago in its earlier ruling on this issue declared that a lack of unanimous medical consensus on the necessity of the procedure required the law to continue to recognize an exception allowing the procedure where the woman's health was at stake, the Court yesterday declared that this lack of medical unanimity meant the precise opposite-- that Congress could ban the procedure outright. Justice Kennedy wrote: "The question becomes whether the Act can stand when this medical uncertainty persists. The Court's precedents instruct that the Act can survive this facial attack. the Court has given state and federal legislatures wide discretion to pass legislation in areas where there is medical and scientific uncertainty."
In her stinging dissent, Justice Ruth Bader Ginsburg focused upon this methodology. She wrote that Kennedy's assertion is "bewildering. Not only does it defy the Court's longstanding precedent affirming the necessity of a health exception, with no carve-out for circumstances of medical uncertainty, it gives short shrift to the records before us, carefully canvassed by the District Courts. Those records indicate the the 'majority of highly-qualified experts on the subject believe [the procedure] to be the safest, most appropriate procedure under certain circumstances.'" For me, this exchange begged the question: what was the point of the three trials, and the three appellate court rulings? Hopefully history, or a future ruling, will help answer that question.
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