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The Conservative Circuit-Court Conspiracy

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


Last week, a federal court ruled Virginia's ban on late-term abortion unconstitutional -- a decision that is sure to outrage and energize abortion opponents. Is that what these laws are intended to do?

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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.


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

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JINGOIST
Posted by: jingoist on Jun 8, 2005 3:36 AM   
Current rating: Not yet rated    [1 = poor; 5 = excellent]
Fanatics on both sides of the isle are driving this issue. Partial birth abortion is an abhorant practice. Zealots on the right would keep a woman from having ANY abortion, as if it's any of their damn business. While heartless, souless, creatures on the left claim that Partial birth abortion is morally justifiable. This truly is an issue where a compromise would be considered a win for all of us. JINGOIST

[« Reply to this comment] [Post a new comment »] [Rate this comment: 1 - 2 - 3 - 4 - 5]

» RE: JINGOIST Posted by: joshy1234
» RE: JINGOIST Posted by: AdamSelene40
» RE: JINGOIST Posted by: kk33deg
» RE: JINGOIST Posted by: jingoist
» RE: JINGOIST Posted by: Kym525
» RE: JINGOIST Posted by: jingoist
» RE: JINGOIST Posted by: FoxSucks
"partial birth abortion"
Posted by: esbuck on Jun 8, 2005 9:07 AM   
Current rating: Not yet rated    [1 = poor; 5 = excellent]
I used to have an old (1930's?) medical text which dealt with complications during delivery and what could be done to save the life of the mother. In those pre-antibiotic days, with deliveries in the farm house, a ceasarian delivery was not an option, unless the mother had died first. Therefore, there were lots of diagrams about how to dismember and extract the (perhaps already dead) baby before the mother died. While the Pope might object, the book did not seem to question that saving the life of the mother justified the sacrifice of the baby. Is it not presumptuous, even in the 21st century, to assume that all deliveries will take place in a well-equipped, sterile operating room? Would a federal anti-PBA law properly apply in a log cabin in Alaska?

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If its a conspiracy.
Posted by: kittynboi on Jun 8, 2005 10:06 AM   
Current rating: Not yet rated    [1 = poor; 5 = excellent]
Its a plausible one. It wouldn't be the first time the GOP and its lackeys purposely lost a battle, or introduced something they knew would be defeated, just to make a political point and to energize its "base".

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Consistent with the Republican strategy...
Posted by: Sojourner on Jun 8, 2005 11:45 AM   
Current rating: Not yet rated    [1 = poor; 5 = excellent]
...is to pass legislation patently unconstutional. Their program amounts to not a whole lot more than turning back the clock. Not only does that keep their opposition busy, energize their base, it also substitutes for wrestling with today's problems.

It is so blatant that it should be providing multiple journalistic expose's daily. Bush's bullying of journalists, however, has succeeded. He runs the US the way he ran Texas. Saints preserve us!

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Maybe Yes, Maybe No
Posted by: thirdmg on Jun 8, 2005 8:05 PM   
Current rating: Not yet rated    [1 = poor; 5 = excellent]
On one hand, I find the author's arguments compelling, if for no other reason than they fit the amoral machiavellian strategies so often adopted by the radical right, especially when they serve to shore up their political base (don't you wish Democratic leaders cared about shoring up their base instead of running away from it at the highest speed?).

On the other hand, I think that most of these right-wing legislators really are malicious ideologues who believe in their poisonous legislation. I think they expect to eventually control the state and federal courts sufficiently to ensure that even the most extreme of their laws will pass judicial scrutiny. And, if that doesn't work, they will try to bypass the judiciary through constitutional amendments.

The example at the end of the article about broadening the anti-gay Federal Marriage Amendment to include "the legal incidents thereof" is a case in point. Similarly written anti-gay amendments to state constitutions have been passed by voters recently in a couple of states and are jeopardizing every form of same-sex legal arrangements and benefits where they've passed.

If the Federal Marriage Amendment ever makes its way out of Congress, forget what the narrow poll numbers say. Much of the public hides its anti-gay bigotry and reserves it for the voting booth. I'm convinced the amendment would be rapidly passed by 3/4 of the states and be added to the Constitution. And I don't expect that many Democratic leaders would come to the defense of gays.

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» RE: Maybe Yes, Maybe No Posted by: joshy1234
Not the real issue
Posted by: Alan on Jun 11, 2005 6:00 AM   
Current rating: Not yet rated    [1 = poor; 5 = excellent]
Yes I think arguments like this one conveniently mould the debate into one that is clear-cut "Us vs. them" dialogue. To me the real issue here is the nastiness and extreme moral ambiguity of late-term abortions. The author prefers to address this whole issue from a detached political perspective, presumably because what is actually at issue is so indefensible.

This is why I stopped reading Alternet regularly. It's incredibly biased and predictable reporting, every bit as pointless in its own cultured, intellectual way as the shrill, predictable screeds of the knee-jerk right.

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» Who's unreal? Posted by: Sojourner
PBA Ban and Republican tactics
Posted by: yellow on Jun 12, 2005 9:43 AM   
Current rating: Not yet rated    [1 = poor; 5 = excellent]
It is typical of right-wing Republican treachery to lie and misrepresent the Democrats and others they oppose. The Republicans repeatedly publicized both instances of Clinton's veto of the PBA ban without also noting that it was the fault of the Republicans themselves who refused to include Rep. Boxer's eminantly reasonable legislation about a pregnant woman's health situation. As it stands, PBAs are less that !% of all abortions and with the new PBA Ban that would include Boxer's amendment they would all but cease to exist entirely! Yet the Republicans, never ones to miss an opportunity to purposely obstruct good government in the interest of partisan advantage, ensured that the PBA ban would be struck down sans Boxer Amendment so that they could deliberately misrepresent both Clinton's and the Democrat's position as being one of unqualified support for Partial Birth Abortions. This was done in the interest of partisan political advantage. It is disgusting but thoroughly consistent with Republican wedge issue creation and political obstructiveness at the expense of society at large! It's time the truth be told in full!

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