The Conservative Circuit-Court Conspiracy

By Joshua Holland, AlterNet. Posted June 8, 2005.

Last Friday, a three-member panel of the 4th Circuit Court of Appeals -- one of the country's most conservative circuits -- upheld a ruling that Virginia's late-term abortion ban is unconstitutional.

It was not the first time that such legislation -- a sop to social conservatives -- has run into trouble with the judiciary; courts in California, Nebraska and New York have made the same findings about the federal PBA ban passed by George W. Bush in 2003.

In each of those cases, the religious right has decried the decisions as evidence that an out-of-control judiciary is bent on remaking the nation in its own, presumably secular and liberal, image. When the federal ban was first blocked by a California court, the Southern Baptist Convention's Richard Land called the decision "yet one more tragic example of a federal judiciary whose moral compass has been grossly demagnetized," and Roberta Combs, president of the Christian Coalition, added: "It is reprehensible that judicial tyranny, such as today's decision, continues unabated in this country." When the New York decision was handed down, Troy Newman, President of Operation Rescue West, predicted: "the ones who will suffer from this arrogance are the tiny babies who will be mercilessly butchered by ghoulish abortionists who... take pride in late-term child killing."

But back in the reality-based community, it is just as clear that the courts have adhered to settled case law. According to the Associated Press, Richard Williams, the judge who handed down the original decision in the Virginia challenge called it a "no brain case" and "unconstitutional on its face." The appeals court, in upholding his ruling, agreed that it violated constitutional law "because the Virginia Act does not contain an exception" to protect a woman's health.

While the fine points of abortion law can be debated all day, one thing about the Republicans' (and some smarmy Democrats') "partial-birth abortion" bans is incontrovertibly clear: they fly in the face of the Supreme Court's unambiguous decision in Stenberg v. Carhart, the 2000 case that overturned a similar ban in Nebraska.

This begs the question why conservatives would craft bills that directly challenge case law established by a Supreme Court tilted in their favor? If they truly found the procedure in question so reprehensible -- they often claim that it blurs the line between abortion and infanticide -- why would they pass up the opportunity to ban it once and for all?

I believe they do it intentionally, writing bills with what amounts to judicial "poison pills." Call it legislative activism -- crafting laws that directly challenge legal precedent and, in so doing, create win-win scenarios for the right: in the unlikely event the bans are upheld, they would severely erode a woman's right to choose her own reproductive healthcare. If they're overturned, it would fire up the Republicans' socially-conservative base and support the view that 'secularists' -- in the words of David Limbaugh, author and legal scholar (and Rush's brother) -- "are waging a war against Christianity and the freedom of Christians to be involved in public life."

I come to this conclusion by answering an admittedly cynical question: Is it better for Republican leaders to ban less than one percent of the abortions performed in the United States, or would they prefer to stir up the passions of their base in time to walk precincts and man phone-banks for the 2006 mid-term elections? And while we're at it, how valuable will the letters, calls and protests of 20,000,000 pissed-off evangelicals be during an upcoming Supreme Court fight?

Legislating after Stenberg

When the Virginia law was introduced in 1998, legislators were working in a murkier legal environment than exists today. In Women's Med Prof v. Voinovich, the 6th Circuit Court of Appeals had found the Ohio PBA ban unconstitutional according to the standard set in the 1992 case Planned Parenthood v. Casey, which prevents states from placing an "undue burden" on a woman's access to abortion services. However, the Ohio law was substantially different from similar bans in other states, so the question was far from settled.

Joshua Holland is a fair-trade activist, a freelance writer and a regular contributor to The Gadflyer blog.

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