Constitutionality and the Partial-Birth Abortion Ban, part three
| June 6th, 2003As a pre-Supreme Court Clarence Thomas once argued (pdf file):
Thomas’ argument gets at why the Supreme Court will not let the pro-lifers get away with their loophole (see my post “Constitutionality and the Partial- Birth Abortion Ban, part two” - just scroll two posts down - if you don’t know what I’m referring to). The Partial Birth Abortion Ban is a direct assault on the power of the Supreme Court to limit legislative power; in order to accept the pro-lifer’s argument, the Court would have to rule that Congress can overturn any Court ruling simply by generating an appropriate set of “factual” findings.
In fact, the Supreme Court faced this issue fairly recently; when Congress passed the Violence Against Women Act, they included in the law detailed findings intended to show the Court that VAWA was related to interstate commerce. The Court didn’t feel at all obliged to defer to Congress’ findings, and struck down VAWA for being insufficiently related to interstate commerce.
So does that mean that pro-choicers can relax, secure that the Supreme Court will overturn the federal PBA ban, as it did Nebraska’s? I don’t think so. I think it’s likely that the Court in its current form would overturn the ban, but the Court in its current form will never hear the case. By the time the Court hears this case, Justice O’Connor’s seat on the Court will have been filled by a Bush appointee, and that potentially changes everything.
UPDATE: In retrospect, the last paragraph is an overstatement. I should have written that “the Court in its current form might not hear the case”; it may be that O’Connor will not retire before hearing this case. (Update written in April 2004)
June 6th, 2003 at 11:15 am
Film at elevenses.
This comment was written by Long story; short pier..Medley’s noting another disquieting example of the government threatening experts who speak out against a proposed government policy. This time,
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