Destination, Heaven

Apparently, it presents a particularly acute public safety hazard to cause discomfort among those walking by abortion clinics, per these "legislative findings" (PDF):

1. Preservation of public safety is a fundamental obligation of state government.
2. Pedestrians have a right to travel peacefully on Rhode Island streets and sidewalks.
3. Clearly defined boundaries around reproductive health care facilities will improve the ability of safety officials to protect the public

One suspects that the unwritten finding is that "regular protests are effective at persuading women not to abort their unborn children, and Planned Parenthood is losing business." Otherwise, the law (if necessary) could simply require all sidewalks (everywhere) to be passable and all businesses accessible. Instead, it declares that "no person shall knowingly enter or remain on a public way or sidewalk adjacent to a reproductive health care facility within a radius of one hundred feet (100') of any portion of an entrance to, exit from, or driveway of a reproductive health care facility."

It seems to me, by the by, that the exception for "persons using the public sidewalk or street right-of-way adjacent to such a facility solely for the purpose of reaching a destination other than such facility" provides a bit of a loophole. Even if a destination of Heaven wouldn't suffice in court, one could contrive destinations (e.g., cars or posters) on either side of the fatality facility.

High-Note Ending, or Higher Ethic?

I can't help but think that New York Times movie reviewer Stephen Holden misses the significance of Bella by, well, by the distance between life and death:

It is not hard to see why "Bella," a saccharine trifle directed by Alejandro Monteverde, won the People's Choice Award at the 2007 Toronto International Film Festival. This is a movie that wears its bleeding heart on its sleeve and loves its characters to distraction. Nothing — not even significant plot glitches and inconsistencies — is allowed to get in the way of its bear-hugging embrace of sweetness and light. ...

After she confesses that she is pregnant and planning an abortion, he decides to talk her out of it, helps her find a new job and takes her home to his warm-hearted Latino family on Long Island. ...

If "Bella" (the title doesn't make sense until the last scene) is a mediocre cup of mush, the response to it suggests how desperate some people are for an urban fairy tale with a happy ending, no matter how ludicrous.

On further thought (and I say this admitting that I haven't seen the movie), it could be that Holden does get just what people are desperate for. Perhaps he uses "happy ending" — hardly a finale that Hollywood avoids — as a euphemism for "life-affirming."

It's All in the "But"

This is for those who think that Rudy Giuliani's philosophy on the judiciary will compensate for his personal view on abortion:

"But with Roe—a strict constructionist judge could come to either conclusion about Roe v. Wade. He could come to the conclusion that it was incorrectly decided, overturn it, or he could decide well, it's been precedent for so long now, it would be too disruptive to overturn it, so we leave it alone. I would leave that up to a judge."

Do pro-lifers really want to flip that coin?

Congress Shall Make No Law (Except if Abortion is Involved)...

Legislators, activists and especially judges often seem to operate from the assumption that laws related to abortion should be evaluated according to different rules than other laws. Today's Projo has an sensible editorial reminding its readers that this shouldn't be the case…

Under current Massachusetts law, anti-abortion protesters must observe a six-foot “bubble” within 18 feet of any abortion provider. (In other words, within 18 feet of a clinic, protesters must stay at least six feet away from anyone entering or leaving. Leave it to legislators to put their diktats in garbled language!)

The state Senate has approved a bill to expand the buffer zone around abortion clinics. Under the proposal, which is expected to be passed and signed into law by Governor Patrick, protesters would be prohibited from coming within 35 feet of a clinic’s property line. Importantly, this includes silent protesters, and apparently applies to people standing otherwise lawfully on private property — even their own.

Those who believe that this further restriction on the “right of the people to peaceably assemble” (from the First Amendment of the U.S. Constitution) is justified, should ask themselves this: As a matter of law, would they favor a 35-foot buffer zone around military recruitment offices? Or keeping immigration-reform demonstrators 35 feet away from all federal buildings?

According to the op-ed, even the ACLU opposes the new Massachusetts law because of its over-broadness. (The ACLU has a mixed record on no-free speech "bubbles" in general, with the national organization having supported some narrow ones in the past, sometimes over the objections of local chapters).

How the Miracle Will Sit

This is a touching story, and whether one would have made different decisions as a parent requires much reflection, but it's easy to imagine Gabriel reacting to it quite differently than his parents might expect:

When doctors found that Gabriel was weaker than his brother, with an enlarged heart,and believed he was going to die in the womb, his mother Rebecca Jones had to make a heartbreaking decision.

Doctors told her his death could cause his twin brother to die too before they were born, and that it would be better to end Gabriel's suffering sooner rather than later.

Mrs Jones decided to let doctors operate to terminate Gabriel's life.

Firstly they tried to sever his umbilical cord to cut off his blood supply, but the cord was too strong.

They then cut Mrs Jones's placenta in half so that when Gabriel died, it would not affect his twin brother.

But after the operation which was meant to end his life, tiny Gabriel had other ideas.

Although he weighed less than a pound, he put up such a fight for survival that doctors called him Rocky.

Astonishingly, he managed to carry on living in his mother's womb for another five weeks - until the babies were delivered by caesarean section.

Now he and Ieuan are back at home in Stoke - and are so close they are always holding each other's hand.

"Don't you see, son? The point isn't that we tried to kill you; it's that we failed!"

The Mutable Soul

Jonah Goldberg has opened up the topic of ensoulment with respect to abortion, and an email that he published concerning the Christian view doesn't take its conclusions quite far enough to be entirely relevant to his broader stance on abortion:

What Christianity actually teaches is that man—and man alone—is a psychosomatic entity consisting of a body and a soul. Both together comprise the human person. Animals are pure body—even to the extent that they have intellect, they do not have immortal souls; angels on the other hand, are pure spirit, and thus have only tenuous links to the material world. Man alone participates in the entire "kosmos" created by God, who made all things visible and invisible (which formulation in the patristic mind implied material and immaterial). Man therefore has a unique place in God's plan as mediator of creation. The patristic understanding of the Second Coming, therefore, is not the obliteration of the material universe so that man can live an airy-fairy existence in some immaterial heaven (white robe and harp optional), but the restoration of this world to the state it had before the fall of Adam. To Christians, as to Jews, the resurrection of the dead means specifically the reuniting of the soul and the body in a restored humanity no longer subject to death and corruption.

A previous emailer had suggested that God "puts a body around our soul," but Christian doctrine is clear that each human is a created being, that only Jesus ("begotten, not made") is co-eternal backwards in history with God, and that God forms us in the womb. If that "us" is to be taken as including both body and soul, it follows that the soul is formed there, too, and no reason exists to suppose that our souls do not develop in a way similar to our bodies, with the main difference being that nature does not impose such a rigid trajectory on our spirits.

Upon conception, the progress of both facets of the unique human being begins, with the nascent soul definable mainly in terms of its volition to develop. At various stages in youth, the person becomes aware of existence, aware of his or her unique existence, and aware of his or her subordination to the rest of nature. These are milestones, not steps. Upon death — although I'll have to get back to you many decades hence (God willing) to speak with the confidence of experience — the trajectory can continue sharply toward God (Heaven), gradually toward Him (Purgatory), or gradually or sharply away from Him (Hell).

I offer my afterlife speculation only to present a full, if approximate, picture of the human being's existence in total, which is how the Christian believes God to see it. Because we've only hints and clues with respect to life after death, when Christians speak against morally illicit killing — whether the murder of adults or abortion — they tend to emphasize the insult to God and the deleterious effects on the killer. I submit that it strains a God-centered philosophy to suppose that there are distinctions to be made, on either of these counts, along the human lifespan. As for the effects on the killed, we would certainly like to believe that a person murdered in utero would instantly be saved, but it seems just as likely to me that he or she faces only a slow, purgatorial advancement toward Heaven.

Whatever the case, the point is that there is no such thing as "ensoulment," except inasmuch as it is synonymous with the creation of the individual (aka conception). This line of reasoning may ultimately leave us no less certain whether the preborn have souls, but it requires that the question be not whether they have received them yet, but whether souls actually exist. In most usages, "soul" is shorthand for "the thing that makes us each uniquely valuable," and if it is not real, then human life is devalued no matter its development.

Moderate by Moderate Left

The problem with the cult of moderation is that it requires there to be two extremes equidistant from the middle line of wisdom, or else it must define the two opposing groups as the extremes, no matter where they actually lie. To present his — certainly welcome — "compromise" position of sending abortion policy back to the states, Radly Balko must write as if the current advantage to one side is not relevant in comparing the two and as if neither of the two supposed extremes has ever promoted such a solution.

Consider this instance of ostensible even-handedness on his part:

Hendershott criticizes the pro-choice movement for trying to suppress information that might injure its cause. In one particularly interesting passage, she discusses General Electric's remarkable "4D" ultrasound imaging system, a technological innovation that renders striking images of fetuses in the womb. In 2002 G.E. marketed the product in a national campaign aimed at young women, showing expectant mothers bonding with their unborn children while Roberta Flack sang "The First Time Ever I Saw Your Face." The technology was enormously popular. 4D ultrasound stations even began to appear in shopping malls.

Abortion rights proponents leapt into action, fearing that too-real images of unborn fetuses might cost them popular support. After pressure from pro-choicers, G.E. pulled the TV ads, pulled testimonials from its website, and began marketing the technology solely for medical purposes. Several states banned the use of ultrasound for "nonmedical" purposes, including New York, where then–Attorney General Eliot Spitzer subpoenaed 34 anti-abortion crisis pregnancy centers for "practicing medicine without a license" because they used the technology.

The 4D controversy is a striking example of how one side of the abortion debate used the law to suppress the flow of information to expectant mothers out of fear of what that information might do to their cause. But Hendershott has little to say about similar efforts on the anti-abortion side. Pro-life lawmakers, for example, repeatedly have attempted to prohibit physicians who receive federal funding from even discussing abortion with their patients, particularly at overseas military hospitals.

On one side, a major private company was cowed into minimizing the marketing of an "enormously popular" product, and an attorney general undertook a campaign against the product's users. On the other side? Some lawmakers "repeatedly have attempted" to attach strings to federal funds to doctors. Why, the two sides are practically mirror images! (Perhaps in a funhouse.)

The reality is that the federalist argument as been an organic part of the pro-life movement for at least as long as I can remember. That is why there is so much emphasis on simply overturning Roe v. Wade. Because of his desire to cleave a middle road, however, Balko insists that no mere erasure of the ruling would suffice:

For such a scenario to emerge, the Supreme Court would need to do more than overturn Roe. It would have to make it clear that the regulation of abortion is a police power reserved to the states, and that it will no longer entertain attempts to override abortion policy made by the states. That approach wouldn't be perfect, and it wouldn't satisfy the hard-core activists on either side of the debate, but it would be far preferable to what we have now. As it stands, the Supreme Court is one vote from overturning the decision, with two pro-Roe justices — Ginsburg and John Paul Stevens — generally considered the members most likely to retire.

Unfortunately, judging from the Court’s recent ruling in Gonzales v. Carhart (which upheld a congres­sion­al ban on “partial birth” abortions) and the fair-weather approach to federalism taken in cases like Gonzales v. Raich (which upheld a federal ban on medical marijuana), a decision overturning Roe probably would leave the door open to a national ban. The divisive debate would continue.

Divisive debate would continue, no doubt, upon the striking of Roe, but the method of abortion's nationalization must be considered: Only the judiciary can create laws without broad political wrangling. That is what makes it such a dangerous body once it becomes a tool for activism. The Supreme Court does not need to find compromise positions across the spectrum of opinion on a particular issue in order to decide its cases; it merely dictates the law.

The medical marijuana reference exposes Balko's inclination to make immoderate equivalencies: The legislative process came first, with the Supreme Court merely permitting it to stand. There's quite a difference — which one might call "democracy" — between legislative activism and judicial, and the same sequence of events when it comes to abortion is unlikely.

The fact that pro-life groups are constitutionally barred from significant successes at the state level has created incentive for them to act nationally. Were abortion to become a state matter again, the incentive would shift toward activism at that level. There would, no doubt, be a concerted push on both sides for the national solution that each favors, but here, it is the issue's divisiveness that ensures that it will stop at the states. At least in the near term, the only consensus that is likely to emerge via the democratic process is that the federal government oughtn't meddle.

And that's fine by me. I believe that the allowance of abortion is a horrible moral stain on our society, and I will argue against it at every tier from the personal to the international. At the same time, I believe in the process of public discourse and gradual change as the most effective way to minimize the stark manifestation of evil in our society. When the abortion debate levels out into a lower-key cultural battle for hearts and minds, with local victories achievable through discourse, grace can begin to show the maggotted bride called self-deception for what she is.

For Fathers, Responsibility Should Come with Choice (If Only of One Option)

Of course, I'd argue that moral laws would forbid abortion whatever the father's opinion, but I'm sympathetic to the incremental gain that some Ohio lawmakers are seeking:

Several Ohio state representatives who normally take an anti-abortion stance are now pushing pro-choice legislation - sort of.

Led by Rep. John Adams, a group of state legislators have submitted a bill that would give fathers of unborn children a final say in whether or not an abortion can take place.

It's a measure that, supporters say, would finally give fathers a choice.

"This is important because there are always two parents and fathers should have a say in the birth or the destruction of that child," said Adams, a Republican from Sidney. "I didn't bring it up to draw attention to myself or to be controversial. In most cases, when a child is born the father has financial responsibility for that child, so he should have a say."

As written, the bill would ban women from seeking an abortion without written consent from the father of the fetus. In cases where the identity of the father is unknown, women would be required to submit a list of possible fathers. The physician would be forced to conduct a paternity test from the provided list and then seek paternal permission to abort. ...

With the proposal, men would be guaranteed that voice under penalty of law. First time violators would by tried for abortion fraud, a first degree misdemeanor. The same would be the case for men who falsely claim to be fathers and for medical workers who knowingly perform an abortion without paternal consent.

In addition, women would be required to present a police report in order to prove a pregnancy is the result of rape or incest.

If the mother can force the father to take responsibility for his actions, then the father ought to be able to do the same, making due commitment to share the burden as much as possible. I know the self-centered slogan is "my body, my choice," but the reasoning is the same for both parents: both made the choice to use their bodies for sex, and both are morally obliged to accept an always possible and entirely foreseeable consequence. In this case — with a human life at stake — both ought to be legally obliged, as well.

Taking the Bishop's Cue

For those who might have missed it (whether by accident or by design), I've got a piece in today's Providence Journal that considers some of the discussion that Bishop Tobin's reflections on Rudy Giuliani inspired.

Abortion Falsehoods and Truths

The Providence Journal's editorial on the Supreme Court's partial-birth abortion ruling isn't quite as deceptive/deluded as Mary Ann Sorrentino's, but at the very least, it's misleading (emphasis added):

The U.S. Supreme Court’s 5-to-4 decision upholding the right of the federal government to impose a ban on a certain form of rarely performed second-trimester abortion is unfortunate in two major ways.

First, it extends the role of the federal government into areas best left to physicians. The court upheld the idea that there be no medical exception in which a woman’s physician, after determining that so-called partial-birth abortion (“intact dilation and evacuation”) was necessary to protect the health of the woman, could then perform the procedure.

Apparently, allowing for the procedure in order to save the life of the mother doesn't count as a "medical exception." Judging from the Projo's bizarre notion of federalism, however, one must leave open the possibility that the word "exception" is used, here, to mean "constitutional right to whatever abortionists can do." I say this because it seems the editors feel that the federal government's power should be limited to granting broad rights to death, thus barring states from making anything more than moderate exceptions, without its being, for some reason, as unfortunate when a state government meddles in "areas best left to physicians." (Curious, that.)

Further, whatever you think of this procedure, that the federal government in this case has again intruded into an area that seems to us to be most properly situated close to or in domestic law — and therefore in our federal system under state jurisdiction — should trouble even many conservatives. This is part of a troubling pattern we have seen in the Bush administration of undermining the right of the states to regulate medicine within their boundaries. The Terry Schiavo case and the Oregon assisted-suicide law provide the best known cases of such, to us, inappropriate intervention.

In short, the ruling appears to be a dangerous over-reaching of federal jurisdiction, and one that we especially fear may set an unfortunate precedent for further inroads into individual rights and the relationship between physician and patient, up to and including an outright federal ban on abortion, thus overturning 1973’s Roe v. Wade protection of that right.

Contrary to the Projo's dismissive "whatever you think of this procedure," before conservatives — or just, you know, human beings — decide what they should be troubled about, it might be helpful for them to understand just what they're supposed to gloss over. Here's a passage from Gonzales v. Carhart by which future generations will have opportunity to judge us for centuries hence (citations removed):

The surgical procedure referred to as "dilation and evacuation" or "D&E" is the usual abortion method in [the second] trimester. Although individual techniques for performing D&E differ, the general steps are the same.

A doctor must first dilate the cervix at least to the extent needed to insert surgical instruments into the uterus and to maneuver them to evacuate the fetus. The steps taken to cause dilation differ by physician and gestational age of the fetus. ...

After sufficient dilation the surgical operation can commence. The woman is placed under general anesthesia or conscious sedation. The doctor, often guided by ultrasound, inserts grasping forceps through the woman's cervix and into the uterus to grab the fetus. The doctor grips a fetal part with the forceps and pulls it back through the cervix and vagina, continuing to pull even after meeting resistance from the cervix. The friction causes the fetus to tear apart. For example, a leg might be ripped off the fetus as it is pulled through the cervix and out of the woman. The process of evacuating the fetus piece by piece continues until it has been completely removed. A doctor may make 10 to 15 passes with the forceps to evacuate the fetus in its entirety, though sometimes removal is completed with fewer passes. Once the fetus has been evacuated, the placenta and any remaining fetal material are suctioned or scraped out of the uterus. The doctor examines the different parts to ensure the entire fetal body has been removed.

Some doctors, especially later in the second trimester, may kill the fetus a day or two before performing the surgical evacuation. They inject digoxin or potassium chloride into the fetus, the umbilical cord, or the amniotic fluid. Fetal demise may cause contractions and make greater dilation possible. Once dead, moreover, the fetus' body will soften, and its removal will be easier. Other doctors refrain from injecting chemical agents, believing it adds risk with little or no medical benefit.

The abortion procedure that was the impetus for the numerous bans on "partial-birth abortion," including the Act, is a variation of this standard D&E. The medical community has not reached unanimity on the appropriate name for this D&E variation. It has been referred to as "intact D&E," "dilation and extraction" (D&X), and "intact D&X." For discussion purposes this D&E variation will be referred to as intact D&E. The main difference between the two procedures is that in intact D&E a doctor extracts the fetus intact or largely intact with only a few passes. There are no comprehensive statistics indicating what percentage of all D&Es are performed in this manner.

Intact D&E, like regular D&E, begins with dilation of the cervix. Sufficient dilation is essential for the procedure. To achieve intact extraction some doctors thus may attempt to dilate the cervix to a greater degree. This approach has been called "serial" dilation. Doctors who attempt at the outset to perform intact D&E may dilate for two full days or use up to 25 osmotic dilators.

In an intact D&E procedure the doctor extracts the fetus in a way conducive to pulling out its entire body, instead of ripping it apart. One doctor, for example, testified:

"If I know I have good dilation and I reach in and the fetus starts to come out and I think I can accomplish it, the abortion with an intact delivery, then I use my forceps a little bit differently. I don't close them quite so much, and I just gently draw the tissue out attempting to have an intact delivery, if possible."

Rotating the fetus as it is being pulled decreases the odds of dismemberment. A doctor also "may use forceps to grasp a fetal part, pull it down, and re-grasp the fetus at a higher level--sometimes using both his hand and a forceps--to exert traction to retrieve the fetus intact until the head is lodged in the [cervix]."

Intact D&E gained public notoriety when, in 1992, Dr. Martin Haskell gave a presentation describing his method of performing the operation. In the usual intact D&E the fetus' head lodges in the cervix, and dilation is insufficient to allow it to pass. Haskell explained the next step as follows:

" 'At this point, the right-handed surgeon slides the fingers of the left [hand] along the back of the fetus and "hooks" the shoulders of the fetus with the index and ring fingers (palm down).

" 'While maintaining this tension, lifting the cervix and applying traction to the shoulders with the fingers of the left hand, the surgeon takes a pair of blunt curved Metzenbaum scissors in the right hand. He carefully advances the tip, curved down, along the spine and under his middle finger until he feels it contact the base of the skull under the tip of his middle finger.

" '[T]he surgeon then forces the scissors into the base of the skull or into the foramen magnum. Having safely entered the skull, he spreads the scissors to enlarge the opening.

" 'The surgeon removes the scissors and introduces a suction catheter into this hole and evacuates the skull contents. With the catheter still in place, he applies traction to the fetus, removing it completely from the patient.' "

This is an abortion doctor's clinical description. Here is another description from a nurse who witnessed the same method performed on a 26-week fetus and who testified before the Senate Judiciary Committee:

" 'Dr. Haskell went in with forceps and grabbed the baby's legs and pulled them down into the birth canal. Then he delivered the baby's body and the arms--everything but the head. The doctor kept the head right inside the uterus... .

" 'The baby's little fingers were clasping and unclasping, and his little feet were kicking. Then the doctor stuck the scissors in the back of his head, and the baby's arms jerked out, like a startle reaction, like a flinch, like a baby does when he thinks he is going to fall.

" 'The doctor opened up the scissors, stuck a high-powered suction tube into the opening, and sucked the baby's brains out. Now the baby went completely limp... .

" 'He cut the umbilical cord and delivered the placenta. He threw the baby in a pan, along with the placenta and the instruments he had just used.' "

Dr. Haskell's approach is not the only method of killing the fetus once its head lodges in the cervix, and "the process has evolved" since his presentation. Another doctor, for example, squeezes the skull after it has been pierced "so that enough brain tissue exudes to allow the head to pass through." Still other physicians reach into the cervix with their forceps and crush the fetus' skull. Others continue to pull the fetus out of the woman until it disarticulates at the neck, in effect decapitating it. These doctors then grasp the head with forceps, crush it, and remove it.

Some doctors performing an intact D&E attempt to remove the fetus without collapsing the skull. Yet one doctor would not allow delivery of a live fetus younger than 24 weeks because "the objective of [his] procedure is to perform an abortion," not a birth. The doctor thus answered in the affirmative when asked whether he would "hold the fetus' head on the internal side of the [cervix] in order to collapse the skull" and kill the fetus before it is born. Another doctor testified he crushes a fetus' skull not only to reduce its size but also to ensure the fetus is dead before it is removed. For the staff to have to deal with a fetus that has "some viability to it, some movement of limbs," according to this doctor, "[is] always a difficult situation."

D&E and intact D&E are not the only second-trimester abortion methods. Doctors also may abort a fetus through medical induction. The doctor medicates the woman to induce labor, and contractions occur to deliver the fetus. Induction, which unlike D&E should occur in a hospital, can last as little as 6 hours but can take longer than 48. It accounts for about five percent of second-trimester abortions before 20 weeks of gestation and 15 percent of those after 20 weeks. Doctors turn to two other methods of second-trimester abortion, hysterotomy and hysterectomy, only in emergency situations because they carry increased risk of complications. In a hysterotomy, as in a cesarean section, the doctor removes the fetus by making an incision through the abdomen and uterine wall to gain access to the uterine cavity. A hysterectomy requires the removal of the entire uterus. These two procedures represent about .07% of second-trimester abortions.

As one who is generally strongly supportive of states' right to differ substantively in their laws, I have to say that, as with slavery, I've no qualms about allowing the federal government to "dangerously overreach" to make blanket prohibitions of monstrosity.

Mary Ann Sorrentino Misunderstands the Partial Birth Abortion Ban

Mary Ann Sorrentino’s Providence Phoenix article on the Federal partial birth abortion ban and the Supreme Court’s decision upholding it in Gonzales v. Carhart repeats a serious factual error multiple times…

The court’s decision to uphold a ban on late-term abortions — even when the mother’s health is endangered — codifies what pro-choicers have suspected (and warned about) for decades. Abortion opponents grant the fetus “paramount right-to-life” status, while pregnant women apparently have no right to any life.

If, in month five of a pregnancy, a woman faces a medical situation guaranteed to injure or even kill her through pregnancy-related complications discovered at that time, compassionate conservatives say, “Tough!”

The assertion that the Federal partial birth abortion contains no exemption for the life of the mother is not accurate. Here is the text of the law...

Any physician who, in or affecting interstate or foreign commerce, knowingly performs a partial-birth abortion and thereby kills a human fetus shall be fined under this title or imprisoned not more than 2 years, or both. This subsection does not apply to a partial-birth abortion that is necessary to save the life of a mother whose life is endangered by a physical disorder, physical illness, or physical injury, including a life-endangering physical condition caused by or arising from the pregnancy itself.

How could a life of the mother exception possibly be any clearer?

Secondly, the Supreme Court in Carhart did not even hold that all partial birth abortions (except in cases where the mother's life is threatened) are prohibited. The Court only ruled that its precedents requiring that late-term abortion restrictions include an exception for the health of the mother extending beyond life-threatening circumstances did not justify overtuning the partial birth law as a whole and permitting the procedure in any situation. Because "as applied" challenges to the law are still allowed, the court may still yet find that a health of the mother exception is automatically built into any late-term abortion law.

The issue of abortion ban health exceptions in non-life threatening situations has become a contentious one because many abortion rights activists refuse to draw a distinction between mental and physical health. Froma Harrop has expounded on this point in the past…

Most of us agree that these abortions [to protect the health of the mother] should be done only under extraordinary circumstances. So if by "health" we mean the psychic well-being of someone who decided late in the game that she didn't want a baby, then no, the pregnancy must go to full term. But if something has gone terribly wrong, and the woman would be physically ravaged by continuing a pregnancy, then we must have a different kind of debate.

If Ms. Sorrentino doesn’t think that physical versus mental health is a legitimate distinction, then why does she limit herself to physical health examples (unless she considers raising or maybe giving a child up for adoption a “pregnancy related complication”) to make her point about the situations where partial birth abortion needs to be allowed?

Mary Ann Sorrentino is not a newcomer to the abortion issue. Her inability to get the basic facts right shows how the abortion rights movement has become consumed by political rhetoric that has little or nothing to do with reality.

What the Partial Birth Abortion Ruling Means

Here’s what last week's Supreme Court decision in Gonzales v. Carhart, the “partial birth abortion case”, means…

1. It doesn't mean that there has been any change in the controlling precedent of American abortion law, the 1992 Planned Parenthood vs. Casey decision authored by Justices Sandra Day O’Connor, Anthony Kennedy, and David Souter…

It must be stated at the outset and with clarity that Roe’s essential holding, the holding we reaffirm, has three parts. First is a recognition of the right of the woman to choose to have an abortion before viability and to obtain it without undue interference from the State. Before viability, the State’s interests are not strong enough to support a prohibition of abortion or the imposition of a substantial obstacle to the woman.s effective right to elect the procedure. Second is a confirmation of the State’s power to restrict abortions after fetal viability, if the law contains exceptions for pregnancies which endanger the woman.s life or health. And third is the principle that the State has legitimate interests from the outset of the pregnancy in protecting the health of the woman and the life of the fetus that may become a child. These principles do not contradict one another; and we adhere to each.

Since partial birth abortion occurs after fetal viability, the decision applies to circumstances where the court has already said that restrictions are allowed.

2. Lost in most of the MSM coverage has been Gonzales v. Carhart's major holding: the courts don't get an extra veto over the lawmaking process, to be applied at their discretion, when the issue of abortion is involved.

Gonzales v. Carhart is not the final word on any partial birth abortion procedure. Women may still seek the procedure in individual cases, and courts might still yet rule that the Federal ban cannot be enforced under certain circumstances. What the Carhart ruling does say is that the courts cannot use the existence of exceptions to strike down the law as a whole. In legalese, the “facial” challenge to the law has been rejected, but “as applied” challenges are still possible. Ed Whelan of the Ethics and Public Policy Center has much more on this central issue here.

3. National Review Online's editorial on the ruling provides the best explanation of why the "intact dilation and extraction" procedure that is the object of the Federal ban was chosen for legislative action. If singling out one late-term procedure for restriction seems absurd, it is because the legal reasoning applied to abortion matters has been absurd -- and not at all scientific.

Intact dilation and extraction, which begins with the delivery of an unborn child, involves a legitimate gray area in the Supreme Court’s de-facto abortion jurisprudence (the dejure standard established in Casey nothwithstanding) that has placed political ideology over science. The courts have held that the life of a fully viable human being is not always protected by law, depending on the location of that life. An 8 3/4 month old fetus in the womb? Not protected. A 6 month old premature baby, one second after delivery? Protected. A 6 month old fetus, one second before an emergency premature delivery? Not protected. And a 6 month old baby in the process of being delivered?

That is the question the Federal partial birth abortion ban was designed to address.

The Confluence of Homosexuality and Abortion

Ian Donnis rather wryle points out that "one of the country's top evangelicals, Kentucky-based Albert Mohler, has suggested that pre-natal treatment to change homosexuality in the womb would be biblically justified." Donnis also directs us to a recent piece by Mary Ann Sorrentino on the same topic. Writes Sorrentino:

The same gang that for decades has warred against any invasion of the womb in which a developing fetus (which they call an “unborn child)” resides now hopes to put a fetus on a sure road to heterosexuality.

As interesting as the concept of a gay fetus may seem, the image of hordes of so-called Christians fretting about the sexual orientation of the not-yet-born boggles the mind. Yet the Reverend R. Albert Mohler Jr., president of Louisville’s Southern Baptist Theological Seminary, claims that in utero gays can find salvation through hormonal interventions that might make them straight from the moment when the obstetrician whacks their newly born bottom.

Mohler belongs to the same faction that has opposed pre-birth medical tampering in the past. Gender selection, in vitro fertilizations, even some pre-birth surgical procedures have all been deemed wrongful interference in divine territory. Now that these people see a way to diddle with the sexuality of the unborn, however, many of them are all over that possibility.

Indeed, it's apparently the hypocrisy of it all that is bothering people:

''What bothers me is the hypocrisy,'' [Jennifer Chrisler of Family Pride, a group that supports gay and lesbian families] said. ''In one breath, they say the sanctity of an unborn life is unconditional, and in the next breath, it's OK to perform medical treatments on them because of their own moral convictions, not because there's anything wrong with the child.''

Rev. Mohler is clearly making a distinction between pre-natal hormonal treatment and genetic manipulation (maybe it's too fine a point, I don't know). And Chrisler seems to be willingly conflating the meaning of "sanctity of life" to serve her own rhetorical purpose. There can be little doubt that Mohler is being consistent in his stance against abortion, as he also said "he would strongly oppose any move to encourage abortion or genetic manipulation of fetuses on grounds of sexual orientation."

This is part of a deeper debate, as outlined in this article:

Conservatives opposed to both abortion and homosexuality will have to ask themselves whether the public shame of having a gay child outweighs the private sin of terminating a pregnancy....Pro-choice activists won't be spared, either. Will liberal moms who love their hairdressers be as tolerant when faced with the prospect of raising a little stylist of their own? And exactly how pro-choice will liberal abortion-rights activists be when thousands of potential parents are choosing to filter homosexuality right out of the gene pool?

I think Rev. Mohler's stated belief is representative of a majority of Evangelicals (I'm not one, by the way) and thus answers the first question: having any child--gay or not--is preferable to aborting one. On the other hand, Sorrentino has consistently framed the abortion issue as a matter of "choice." So, if she doesn't want to be, you know, "hypocritical," does that mean that we can assume she also endorses a woman's right to choose to abort a fetus because it may be gay?

And that takes me to an even wider discussion. A couple years ago, I came across this touching piece by Patricia Bauer, the mother of a child with Down Syndrome. The parallel to the above discussion is obvious:

Margaret is a person and a member of our family. She has my husband's eyes, my hair and my mother-in-law's sense of humor. We love and admire her because of who she is -- feisty and zesty and full of life -- not in spite of it. She enriches our lives. If we might not have chosen to welcome her into our family, given the choice, then that is a statement more about our ignorance than about her inherent worth.

What I don't understand is how we as a society can tacitly write off a whole group of people as having no value. I'd like to think that it's time to put that particular piece of baggage on the table and talk about it, but I'm not optimistic. People want what they want: a perfect baby, a perfect life. To which I say: Good luck. Or maybe, dream on.

And here's one more piece of un-discussable baggage: This question is a small but nonetheless significant part of what's driving the abortion discussion in this country. I have to think that there are many pro-choicers who, while paying obeisance to the rights of people with disabilities, want at the same time to preserve their right to ensure that no one with disabilities will be born into their own families {here's an example--ed.}. The abortion debate is not just about a woman's right to choose whether to have a baby; it's also about a woman's right to choose which baby she wants to have.

As far as I can tell, Sorrentino is perfectly fine with that.

Sorrentino has done admirable work in the gay community, but has she ever wondered if those whom she's helped through the tragedy of AIDS would have been better off if their mothers had aborted them instead?

That's a pretty tough theoretical, I know.

I suspect that Sorrentino was so delighted to hold up the mirror of hypocrisy in front of Rev. Mohler's face that she failed to look into it herself. Dealing with these deeper issues--instead of taking the easy, facile "hypocrisy" angle--is a much more difficult task. After she's seen the strength and grace of humanity amidst the tragedy of AIDS, I wonder how she can support giving carte blanche to those who may one day seek to preempt what they'd deem an imperfect life. Does she have personal reservations about unfettered abortion rights or does she subscribe to a universal, abortion-on-demand ideal--regardless of circumstance--because it's an individual choice?

In the end, I'm left with the impression that it's the right-wing, Evangelical zealot who is more likely to protect the right to life of an unborn gay child than a liberal, pro-abortion radical.

Get your head around that.

Fight Global Warming through More Abortions?

I know the standard line is that abortion-rights supporters are pro-choice, not pro-abortion. Bill Clinton once famously said that abortion should be “safe, legal, and rare”.

I’ve found at least one person skeptical about the rare part. In an op-ed from yesterday’s Projo, John Seager argues that large numbers of abortions are necessary to prevent global warming…

Globally, at least 350 million couples lack family planning services. Here in the United States, one-third of all births are unplanned. And the Bush administration’s family-planning failures, from its global gag rule against abortion to ideologically driven abstinence-only programs, contribute directly to millions of unwanted and unplanned births. If we could cut in half the number of unwanted births in the U.S. alone, we’d have about 5 million fewer births over 20 years.

Family planning makes sense for people – and for our fragile planet….More people use more energy. If we had zero population growth, part of the global warming problem would, well, melt away.

Mr. Seager is so seventies in combining his blame-America-first ideology with warnings of looming environmental disaster. The United States is 130th on the world fertility ranking list, already at a rate of 2.09 children-per-woman, meaning that our population has already stabilized (when every couple produces two kids, total population doesn’t grow).

The most fertile European country is Albania at 132 (2.03 children-per-woman). The first West European country in fertility ranking is Iceland at 141 (1.92 children-per-woman). And to find a continental West European country on the fertility list, we have to drop down to France at 154 (1.84 children-per-woman, already helping advance Mr. Seager’s goals, by beginning to depopulate itself). Given these numbers, if Mr. Seager is serious about what he says, he needs to focus his efforts on the Third World and tell them they can’t be having so many kids, because they are causing global warming.

(Related question: Anyone care to speculate on whether it’s a positive sign, or a sign of the apocalypse that Afghanistan is now 5th in fertility, at 6.69 children-per-woman?)

Mitt Romney on Social Issues

I know. I’m not supposed to be posting anything on the 2008 Presidential campaign before June. However, I’m adding a codicil to my New Year’s resolution: I can make an exception when able to present primary-source material about a Presidential candidate (or someone with a Presidential exploratory committee) that adds to a discussion area already active here at Anchor Rising.

At the National Review Institute’s (direct quote from NRO-Editor-at-Large Jonah Goldberg: "Whatever that is") Conservative Summit held this past weekend in Washington D.C., Presidential Candidate and former Massachusetts Governor Mitt Romney gave a substantive address on his philosophy concerning the major issues in American politics -- limited and fiscally conservative government, healthcare, foreign policy, and social and life issues. Here's what Governor Romney had to say about gay marriage, abortion and stem-cell research...

Governor Mitt Romney: When I ran [for Governor of Massachusetts], there were a couple of social issues that were part of that debate. You probably know what some of them were.

One was gay marriage. I opposed then and do now oppose gay marriage and civil unions.

One was related to abortion. My opponent was in favor of lowering the age where a young woman could get an abortion without parental consent from 18 to 16…I, of course, opposed changing the law in that regard.

Another issue was the death penalty, I was for, [my opponent] was against.

Another was English immersion. For a long time, our state had bilingual education, where the schools or the parents get to choose what language their child is taught in. I said that’s just not right. If kids want to be successful in America, they have to learn the language of America. We fought for that, and by the way, I won that one, my opponent did not.

Now, as you know, after I got elected, Massachusetts became sort of the center stage for a number of very important social issues, one of them being gay marriage. I am proud of the fact that I and my team did everything within our power and within the law to stand up for traditional marriage. This is not, in my view and the view of my team, a matter of adult rights. We respect the rights of gay citizens to live as they wish and to have tolerance and respect and not be discriminated against. I feel that very deeply. At the same time, we believe that marriage is not primarily about adults. In a society, marriage is primarily about the development and nurturing of children. A child’s development, I believe, is enhanced by access to a mom and a dad. I believe in every child’s right to a mom and a dad.

Now, there’s one key social issue where I did not run as a social conservative, at least one. That was with regards to abortion. I said I would protect a woman’s right to choose an abortion. I’ve changed my view on that, as you probably know.

Let me tell you the history about that. Some years ago, when I was at the Olympics, I met a guy named Mark Lewis. He was head of our marketing there. He told me that he was a finalist for a Rhodes scholarship. I don’t know how far he got. His final interview was with a German interviewer and the interviewer said to him “Mr. Lewis, who is one of your political heroes?” and he said Ronald Reagan. The German had the predictable response -- *GASP*. He said how in the world can you square that statement with what Churchill said, which is that “a young person who is not a liberal has no heart?” Mark responded by repeating the last portion of that Churchillian comment, that “an older person who was not a conservative had no brain” and adding “I, Herr Doctor, simply matured early”.

On abortion, I wasn’t always a Ronald Reagan conservative. Neither was Ronald Regan, by the way. But like him, I learned with experience.

In my case, the point where that experience came most to bear was with regards to learning about stem-cell research. Let me tell you, there are so many different ways of getting stem cells. I was delving into that because my legislature was proposing new legislation that re-defined when life began. I think it’s interesting that the legislature thinks it has the capacity to make that determination. Our state had always said that life began at conception, but they were going to re-define when life began, so I spent some time learning (with, by the way, a number of people in this room who helped) about all of the different types and sources of stem-cells, not only adult stem cells and umbilical stem cells and stem cells from existing lines, but also surplus embryos from in-vitro fertilization. I supported all of those.

But for me, there was a bright-line when you started creating new life for the purposes of destruction and experimentation. That was somatic-cell nuclear transfer (or cloning) and also what’s known as embryo farming. At one point, I was sitting down with the head of the stem-cell research department at Harvard and the provost of Harvard University, and they were explaining these techniques to me. I imagined in my mind this embryo farming. Embryo farming is taking donor sperm and donor eggs and putting them together in the laboratory and creating a new embryo. If that’s not creating new life, then I don’t know what is. I imagined row after row after row of racks of these, created either by the cloning process or the farming process. At that point, one of the two gentleman said, “Governor, there’s really not a moral issue at stake here, because we destroy the embryos at 14 days”. I have to tell you, that comment and that perspective hit me very hard. As he left the room with his colleague, I turned to Beth Myers, my chief of staff, and said I want to make it real clear: we have so cheapened the value and sanctity of human life in our society that someone can think there’s not a moral issue because we kill embryos at 14 days.

Shortly thereafter, I announced I was firmly pro-life.

Now, you don’t have to take my word for it, by the way. The nice thing about being able to watch governors is you don’t have to look just at what they say, you can look at what they’ve done. Over my term, I had 4 or 5 different measures that came to my desk [concerning life issues] and on every single one I came down on the side of respecting human life. That didn’t make me real popular in the state. Remember, in Massachusetts, Ted Kennedy is considered a moderate….

In the next few days, I’ll have more from Mitt Romney on other issues, excerpts from Newt Gingrich and Jeb Bush on the meaning and future direction of conservatism and from Tony Snow on the Iraq Surge and the President’s new healthcare proposal, plus a whole lot of insights and opinions that I heard discussed at the conference that will bring you up-to-date on the state of conservatism…

Another "Huh?"

From Froma Harrop:

Another reason for the silence [about addressing population growth] is that population has gotten mixed up in the abortion issue. Some abortion foes insist that that Roe v. Wade has produced a sharp population decline. Of course, there isn't a population decline. Population is surging, and even native-born Americans are replacing themselves. The United States is not Europe, where birth rates have fallen to troubling levels (and where, incidentally, the rates of abortion are far lower).

Huh? I've read pretty broadly on abortion, and I don't believe that I've ever come across an abortion foe who made such a point. Does Harrop's "'population' folder" date back to the '70s or something?

I agree with her that "the thorny immigration debate" accounts for some of the reluctance to discuss population growth. I'd say there's also an amply justified reluctance to start putting solutions such as one-child policies on the table. (I've always wondered, by the way, at Western feminists' lack of right-to-choose ire at forced abortions in China.)

Life Issues in Rhode Island

In today's Pawtucket Times, Jim Baron speculates on the effect that South Dakota's abortion ban may have on Rhode Island�

A quick check of the General Assembly website shows there are 17 abortion bills currently in the hopper (some of those are duplicate House-Senate bills). For a decade or so there has been a gentlemen�s agreement (pun intended) in the legislature that no abortion bills would pass - no pro-abortion bills, no anti-abortion bills. That maintained the status quo (which was safe to do as long as abortion was exclusively a federal issue, which it would no longer be if Roe went by the boards)and cut down on a lot of acrimony.

It is worth noting that while the anti-abortion Women�s Right to Know Act has been introduced this year in both chambers, the pro-abortion bill from a few years ago that would assure the procedure would remain legal in Rhode Island if Roe were overturned has not.

Baron also suggests, in the realm of the purely political, that the re-emergence of abortion as a state issue could effect the electoral prospects of second district Congressman James Langevin, who is pro-life.

Related to another life issue, the Projo�s Political Scene column notes that the House�s Health, Education, and Welfare Committee will consider an assisted suicide bill during a marathon committee session this Wednesday where 37 other bills will be considered. Here�s the core of the proposed bill (House bill 7428)�

An adult who is capable, is a resident of Rhode Island, and has been determined by the attending physician and consulting physician to be suffering from a terminal disease, and who has voluntarily expressed his or her wish to die, may make a written request for medication for the purpose of ending his or her life in a humane and dignified manner in accordance with this chapter.

A Charles Bakst column from earlier this year, where he quotes bill sponsor Edith Ajello (D-Providence), suggests that this bill probably won�t pass in this session. Still, it seems that a matter like this -- quite literally a life-and-death issue -- deserves more than 1/38th of a committee session.

Elected Representatives and Public Opinion

Almost always, the rule in political blogging is don�t blame the staff guys (and gals) for the contorted positions that their bosses sometimes force them to have to explain. To use a specific example, have some empathy for the John Kerry spokesman who has to answer a bunch of questions about his boss� statement that �I voted for the Iraqi reconstruction before I voted against it�. It�s not the staff guy�s (or gal�s) fault that the boss is incoherent.

However, Beth Schwartzapfel's article in this week�s Providence Phoenix on the looming confirmation battle over Judge Samuel Alito gives justification for breaking the don�t-blame-the-staff-guys-rule. Here's what Stephen Hourahan, Senator Lincoln Chafee's spokesman, had to say about the best way to influence Senator Chafee�s vote�

Chafee spokesman Stephen Hourahan says the senator�s office has received some calls from constituents on both sides of the issue, "[But] as far as a great outpouring, we haven�t had that yet." His advice to groups on both sides is, "If you wanted to really make an impact, you could get an auto-dialer and start calling the senator�s office."

I thought that the job of an elected representative was to represent what the public really believes. Why is Mr. Hourahan encouraging people to provide a distorted view of public opinion to Senator Chafee?

Taking Abortion Away from the Supreme Court

Though I think he's indulging in a flight of fancy (heck, I'm conservative in both my politics and my expectations), David Gelernter has a politically "radical" (and he offers, "conservative") proposal regarding the ever-present abortion debate. First, his reasoning:

The abortion issue is a catastrophic wound in U.S. cultural life. It has inflicted unending battles on American society ever since the Supreme Court seized control of the issue from state legislatures in 1973 � in one of the grossest power grabs American democracy ever faced.

Young people pondering U.S. democracy today might easily conclude that all really important laws must be decreed by the high court.

We could heal the abortion wound, end the battles and reaffirm the integrity of American democracy if we had the guts to use the Constitution's own mechanism for introducing big, permanent changes to American law. We should get Congress to propose and the nation to ratify a constitutional amendment.

As for specifics, Gelernter further opines and proposes:

Overturning Roe, moreover in the face of majority support, would be a spectacular gesture for the Supreme Court, which no longer likes making spectacular gestures.

How can democracy reassert itself given American political reality? Congress could propose, and the nation could ratify, a two-part constitutional amendment.

Part one would legalize abortion with suitable restrictions. Part two would nullify Roe and reaffirm that only Americans and their elected representatives have the power to make law in this nation. All courts would be implicitly instructed by this slap-in-the-face clause to butt out of law-making.

Obviously, pro-abortion liberals would gain if such an amendment were ratified. Anti-abortion conservatives would too � not in their fight against abortion, perhaps, but as Americans. They can live in a nation where abortion is legal and democracy is under a cloud, or a nation where abortion is legal and democracy has been resoundingly reaffirmed.

Abortion poses vitally important problems, but liberty and democracy are even more important. If we lose them, we lose everything � including all possibility of making things better in the future.

To pass a constitutional amendment is hard, but plenty have been approved in short order. . . . The ratification process would give conservatives a chance they haven't had for years, to make their case to a public that is empowered to act. If the amendment were ratified, which would be likely, abortion rights would at least be backed by the legitimate authority of the people instead of the usurped authority of the court. Democracy would have been vindicated. When the people finally have a chance to speak, this wound would finally have a chance to heal.

It seems to me that the chance that the Supreme Court would render itself moot on the question is low. Thus, the real question is: will the political class be willing to undertake such an effort, with or without the Supreme Court's abdication on the issue?

Can You Define Exactly What Actions Were Authorized by Roe v. Wade?

Hadley Arkes recently published an editorial entitled Reversing the Tables: Still time for Republicans to seize the hearing moment, in which he wrote:

...Dianne Feinstein affects a reasonable style � and then, without strain she attributes to the Nazis a religious passion and connects them then with other people, among us, animated by religious conviction. She likens Nazis in Germany to serious Christians in America � and from the Republicans comes no word of reproach. Once again, the party has taken the strategy of going into the clinch: Offer praise to the nominee, insist that we respect the intellect of Roberts, and confirm him without political sniping. But nothing is done to expose the emptiness of the arguments offered by most of the Democrats � and lay the groundwork then for a Republican counterattack.

A Teaching Moment?

...I suggested a quick two-step for making the issue of abortion work against the Democrats, and with that step, virtually bringing the attacks to a stop...

Even a deft nominee might have difficulty in converting the exchanges into a conversation that would draw out the questioners and expose them to serious embarrassment...

...But what if the Republicans on the Senate Judiciary Committee did not let [Kennedy and his ilk] slide away from his embarrassment on...the most vexing issue of all, the matter of Roe v. Wade?

In the course of an exchange, as questions are posed, he or the Republicans on the committee could point out that even lawyers are often confused about the meaning of Roe. One friend, at a leading law school in the country, found that only 5 of the 25 colleagues she polled could give an accurate account of Roe. If they could be drawn into this question, Senators Leahy and Kennedy might be tempted to draw on the reigning clich�s of the day and say that Roe established the right of a woman to choose an abortion in the first three months of her pregnancy. But Judge Roberts could decorously correct them. What Roe and its companion case (Doe v. Bolton) established was the right to order an abortion throughout the entire length of the pregnancy for any reason at all. It could be ordered even at the point of birth if a woman would suffer distress � some strain on her "mental health" � if that choice were denied her. Is that what the senators would have Judge Roberts affirm? If so, they would be demanding, loudly, in public, a position that is supported by only 22-24 per cent of the country. That is not how most people understand the "right to abortion."...

But in holding back, as they must, they give John Roberts the chance to draw, even gently, this first critical admission: that even the pro-choicers will concede that there are instances in which abortions would be unjustified, and could rightly be forbidden. With that first step in place, it is simply a matter of pivoting to the second step, which finally puts the problem away. Judge Roberts could quickly � and decisively � note that he may not say more: For him to pronounce, right then, on the restrictions that are justified or unjustified is virtually to invite the legislation, and the litigation, that he would be asked later to judge. End of story, end of exchange. And the end, perhaps, of the subject of abortion in these hearings.

It Depends What Your Meaning of "Settled" Is?

Unless the Democrats want to press Roberts on what he could have meant when he pronounced the issue of abortion as "settled." I myself have argued for years that the holding in Roe was indefensible at the moral root, and as John Roberts said, in a brief of 14 years ago, that the decision finds no basis in the text or history of the Constitution. And yet, as a matter of prudence I too could sign on to the notion that Roe could be considered settled law, for the public has evidently come to believe that something of that decision deserves to be sustained. It turns out also that a large portion of people in the country, even "educated" people, seem to believe that the overturning of Roe would mean that the Court had rendered abortion illegal in all parts of the country. Under those conditions, the prudent course could be to avoid setting off a panic and treat Roe as settled in some way for the moment. And as it turns out, Roe could be overruled, in effect, in a series of cases, without the need to pronounce it overruled. As we have seen in the surveys, the support for "abortion rights" peels away as we move, case by case.

At this point, Republicans could weigh in and offer some telling help. They might ask Judge Roberts whether the decision in Roe v. Wade "settled" anything, or even said anything, about these kinds of questions, which continue to arise in litigation:

A legislature accepts the "freedom to choose," but insists that a woman use the form of abortion more likely to bring forth the child alive. Is the right to abortion a right to be separated from an unwanted pregnancy, or a right to insure the death of the child? In 1976, in the Danforth case, the Court deflected one attempt, of a legislature, to encourage the abortion that was not lethal. But was this matter ever addressed in Roe, and might the problem not be posed again?

If a child survives a "live-birth" or an induced abortion, is there an obligation to sustain the child? Or is the right to abortion the right to an "effective abortion" or a dead child? One federal judge held that the child, in this setting, was not protected by the law; but Congress, in 2002, decided it was � and no Democrat voted in opposition (the Born-Alive Infants' Protection Act).

In the classic understanding, an action taken out of ignorance is not a voluntary action. May a legislature act to insure that the decision to abort is not taken out of ignorance, or that a woman is not coerced into the decision? For some it has made a difference to know that there is a beating heart, or that the child is sucking and moving her tongue. Is there anything in Roe v. Wade that bars the authorities from providing this information, or even asking a woman what she wishes to know about the state of the child she is carrying? Or for that matter, is it incompatible with the "right to choose" that a woman be required to learn something more about the surgery she is choosing when she is ending another human life?

No surgery in this country can be performed on minors without the consent of their parents, except of course for abortions. If a legislature insists that the parents are informed, or that they are available to offer help with medication, does Roe v. Wade actually say that the decision must always be left in the hands of strangers who are judges, rather than the family? Could Congress forbid the taking of a minor across the lines of a state for the purpose precisely of evading these restrictions, which are still compatible in principle with the "right to choose" abortion?

Judge Roberts could honestly report that none of these matters is taken up in Roe, and none of them is foreclosed by any principle of "choice" articulated in that decision. None of them, therefore, is part of any law "settled" by Roe v. Wade. Just what part is settled will have to be left to judgment of the Court, as the problem is played out case-by-case...

The critical turn in the law may come if Justice Roberts helps to flip the decision that struck down the laws on partial-birth abortion in the states...If that is done, the Court will be saying, in effect, that it is in business now to consider anew this long chain of cases offering restrictions of various kinds on abortion. What would follow then is a long line of cases, moving in small steps, with the Court upholding one restriction after another on abortion, each one modest, each one regarded by the public as plainly reasonable. When that happens, the regime of Roe v. Wade will have come to an end, without even the need to pronounce it over.

Here is another editorial on Roe v. Wade.

Roe v. Wade

In a 2002 editorial entitled Roe v. Wade at 25: Still Illegitimate, Michael McConnell wrote:

...Roe v. Wade is the most enduringly controversial court decision of the century, and rightly so. Rather than putting the issue to rest, the court converted it into the worst sort of political struggle--one involving angry demonstrators, nasty confirmation battles and confrontational sound bites. With ordinary politicians, who are masters of compromise, out of the picture, the issue became dominated by activists of passionate intensity on both extremes of the spectrum.

...The Constitution stands for certain fundamental principles of free government, and there are times when the courts must intervene to make sure they are not neglected. But when judges act on the basis of their own political predilections, without regard to constitutional text or the decisions of representative institutions, the results are illegitimate.

The reasoning of Roe v. Wade is an embarrassment to those who take constitutional law seriously, even to many scholars who heartily support the outcome of the case. As John Hart Ely, former dean of Stanford Law School and a supporter of abortion rights, has written, Roe "is not constitutional law and gives almost no sense of an obligation to try to be."

The court's reasoning proceeded in two steps. First, it found that a "right of privacy" exists under the Constitution, and that this right is "broad enough to encompass a woman's decision whether or not to terminate her pregnancy."...

But the right of privacy is nowhere mentioned in the Constitution. Various judges, according to the court, had found "at least the roots of that right" in the First Amendment, in the "penumbras of the Bill of Rights," in the Ninth Amendment or in the "concept of liberty guaranteed by the first section of the Fourteenth Amendment." This vague statement is tantamount to confessing the court did not much care where in the Constitution this supposed right might be found. All that mattered was it be "broad enough" to encompass abortion.

Even assuming a right of privacy can be excavated from somewhere, anywhere, in the Constitution, what does it mean? The court avoided defining the term, except by giving examples from previous cases. The trouble is, counterexamples abound. The federal "right of privacy" has never been held to protect against laws banning drug use, assisted suicide or even consensual sodomy--just to mention a few examples of crimes that are no less "private" than abortion. It is impossible to know what does and does not fall within this nebulous category.

Even assuming that there is a right of privacy, and that its contours can be discerned from the court's examples, surely it must be confined to activities that affect no one else. It would be an odd kind of privacy that confers the power to inflict injury on nonconsenting third parties. Yet the entire rationale for antiabortion laws is that an abortion does inflict injury on a nonconsenting third party, the fetus. It is not possible to describe abortion as a "privacy right" without first concluding that the fetus does not count as a third party with protectable interests.

That brings us to step two in the court's argument. Far from resolving the thorny question of when a fetus is another person deserving of protection--surely the crux of the privacy right, if it exists--the justices determined that the issue is unresolvable. They noted that there has been a "wide divergence of thinking" regarding the "most sensitive and difficult question" of "when life begins." They stated that "[w]hen those trained in the respective disciplines of medicine, philosophy, and theology are unable to arrive at any consensus, the judiciary...is not in a position to speculate as to the answer."

According to the court, the existence of this uncertainty meant that the state's asserted interest in protecting unborn life could not be deemed "compelling." But this leaves us with an entirely circular argument. The supposed lack of consensus about when life begins is important because when state interests are uncertain they cannot be "compelling"; and a compelling state interest is required before the state can limit a constitutional right. But the constitutional right in question ("privacy") only exists if the activity in question does not abridge the rights of a nonconsenting third party--the very question the court says cannot be resolved. If it cannot be resolved, there is no way to determine whether abortion is a "right of privacy."

In any event, the court's claim that it was not resolving the issue of "when life begins" was disingenuous. In our system, all people are entitled to protection from killing and other forms of private violence. The court can deny such protection to fetuses only if it presupposes they are not persons.

One can make a pretty convincing argument, however, that fetuses are persons. They are alive; their species is Homo sapiens. They are not simply an appendage of the mother; they have a separate and unique chromosomal structure. Surely, before beings with all the biological characteristics of humans are stripped of their rights as "persons" under the law, we are entitled to an explanation of why they fall short. For the court to say it cannot "resolve the difficult question of when life begins" is not an explanation.

It is true, of course, that people honestly disagree about the question of when life begins. But divergence of opinion is not ordinarily a reason to take a decision away from the people and their elected representatives. One of the functions of democratic government is to provide a forum for debating and ultimately resolving controversial issues. Judges cannot properly strike down the acts of the political branches that do not clearly violate the Constitution. If no one knows when life begins, the courts have no basis for saying the legislature's answer is wrong. To be sure, abortion is an explosive issue...But the Supreme Court made it far more so by eliminating the possibility of reasoned legislative deliberation and prudent compromise.

It is often said that abortion is an issue that defies agreement or compromise. But if the polling data are correct, there has been a broad and surprisingly stable consensus among the American people for at least the past 30 years that rejects the uncompromising positions of both pro-choice and pro-life advocates. Large majorities...believe that abortion should be legally available during the early months of pregnancy. There is also widespread support for legal abortions when the reasons are sufficiently weighty (rape, incest, probability of serious birth defect, serious danger to the mother's health).

But only 15% believe that abortion should generally be available after the first three months, when the fetus has developed a beating heart, fingers and toes, brain waves and a full set of internal organs. Majorities oppose abortions for less weighty reasons, such as avoiding career interruptions. Even larger majorities (approaching 80%) favor modest regulations, like waiting periods and parental consent requirements, to guard against hasty and ill-informed decisions...Most Americans would prohibit particularly grisly forms of the procedure, like partial-birth abortions.

These opinions have persisted without significant change since the early 1970s, and are shared by women and men, young and old alike...If the courts would get out of the business of regulating abortion, most legislatures would pass laws reflecting the moderate views of the great majority. This would provide more protection than the unborn have under current law, though probably much less than pro-life advocates would wish.

The Supreme Court brought great discredit on itself by overturning state laws regulating abortion without any persuasive basis in constitutional text or logic. And to make matters worse, it committed these grave legal errors in the service of an extreme vision of abortion rights that the vast majority of Americans rightly consider unjust and immoral. Roe v. Wade is a useful reminder that government by the representatives of the people is often more wise, as well as more democratic, than rule by lawyers in robes.

Froma Harrop tells you what Dahlia Lithwick won't

Let's give credit to Froma Harrop, which we don't often do at Anchor Rising. Harrop tells you what Dahlia Lithwick won't. Here's Lithwick, in Slate...

The reason social conservatives seek to have no exception to New Hampshire's parental notification statute for situations in which there is a risk to the health of the mother is straightforward: They don't trust doctors. This was the fight at the heart of the partial-birth abortion dispute in the 2000 case of Stenberg v. Carhart, decided by a familiar 5-4 margin. The fear in both contexts is that a health exception in the hands of sympathetic physicians puts no real meaningful limit on abortion

Is it really as simple as the fact that those mean, retrograde social conservatives don't trust doctors and don't care about the health of mothers? Or is there something else in play here? The answer is in Harrop's August 14 Projo column...

Most of us agree that these abortions [to protect the health of the mother] should be done only under extraordinary circumstances. So if by "health" we mean the psychic well-being of someone who decided late in the game that she didn't want a baby, then no, the pregnancy must go to full term. But if something has gone terribly wrong, and the woman would be physically ravaged by continuing a pregnancy, then we must have a different kind of debate.

Harrop is explaining that the courts, at present, define health exceptions to abortion very broadly, drawing no distinction between "mental health" and "physical health". Do social conservatives not trust doctors, or do social conservatives not trust the courts to define reasonable standards of mental health? (Remember Amy Richards, who opted for "pregnancy reduction" becasue she was traumatized by the thought that having triplets would force her to shop at Costco? Would this have qualified under a "mental health" exception?) If Lithwick wanted to facilitate an honest discussion on this issue, she would have mentioned this detail.

Abortion: The Great Crime Reducer

Writing for the American Conservative, Steve Sailer has brought to light a whispered belief by some that abortion reduces the crime rate. It is explained by University of Chicago economist Steven D. Levitt in his new book, Freakonomics: A Rogue Economist Explores the Hidden Side of Everything and has, according to Sailer, been deemed intellectually sound by the likes of George Will and Robert Samuelson. The reason it is only whispered, as Sailer puts it, is because "Levitt�s hypothesis embarrasses pro-choicers, who don�t want public discussion of how quite a few people, from crusading eugenicist and Planned Parenthood founder Margaret Sanger onward, have backed fertility control as a way to limit 'undesirables.' Since blacks undergo about three times as many abortions as whites per capita, white liberals realize that endorsing Levitt�s reasoning could be politically disastrous." I urge you to read the piece as Sailer explains the fallacy behind the theory and other social costs of abortion.

Right and Wrong in Abortion Protests

Joseph Manning's pro-life activities in Cranston evoke mixed feelings in me:

Joseph Manning agreed to take down the baby outfits he had hung in the trees.

They were part of an antiabortion display he puts up three days a week outside the Women's Medical Center on Broad Street.

"That said the whole thing," he said. "You know what I'm saying? The baby suits waving in the trees."

But Manning, 74, won't remove his signs, as many as 11 at a time, some that depict bloody, dismembered fetuses.

I do sympathize with parents' desire to preserve what innocence in their children they can:

The clinic, which provides medical services, including abortions, is at the corner of Betsey Williams Drive, a street with enough children to hold its own Halloween parade.

Bobby Raposa sees the display from behind his picket fence. "I don't like it at all," he said, motioning toward his daughter, who was playing in the yard. "She shouldn't have to learn this at age five, but I have to explain this because these people have pictures of dead babies on the street."

The town would have a right to demand that pornographic posters be removed, even if they were displayed in protest of a bordello. (Of course, for the time being, such a business would be operating illegally; perhaps if Rhode Island's sex workers unionize...) I'd also speak against a thrice-weekly open-air presentation of graphic images of terrorists' beheaded victims, for example. But Mr. Manning does have a point:

Told of the neighbor's concerns that children were seeing his signs, he motioned toward the clinic and said: "I understand. I relate. But there are children being killed in here. If you go on a scale of things, one is much worse."

If a business were somehow legally euthanizing disabled kindergarteners, would our focus really be on protesters' inappropriate signage? Of course, the broader society wouldn't need graphic images to be disgusted by such a thing (at least not at present); the act itself screams in bold letters. Which makes me wonder whether Mr. Manning oughtn't apply the same principle to abortion. How about one big sign with bold letters reading:

There are children being killed in here.

That would avoid the reflexive turning away, and personally, I would find it much more shocking, in its bare truth. It would also force those who object to address the message itself, not its delivery — unless they were to do so by requesting that it not be so blunt. That, actually, is one disturbing aspect of the Providence Journal's report:

Elizabeth and Peter McStay were working in the yard in front of their house, white with green shutters. Peter McStay said, "it's a tough thing. It's a free country, but you don't have the right to infringe upon my way of life."

Exactly wrong. We can only allow ours to be a free country to the extent that we have the right to infringe upon each other's way of life. Put differently, we can only dislodge government authority from the capillaries of our personal lives if we are allowed to influence each other through other means — if we are free, as individuals, to get as far under each other's skin as the boundary between public and private will permit.

Me, I find it a discouraging sign that the apparent compromise between Manning and the town was to sacrifice the symbolism of flapping baby clothes for the gratuity of photographic gore.