Orland Evangelical Free Church | Supreme Court Upholds Partial Birth Abortion Ban

I depart from my usual focus on the New York Times most e-mailed list to probe the Supreme Court's decision yesterday to uphold the federal ban on partial birth abortions. David Stout's story on this decision led the Times on Wednesday (April 18^th). Several factors make this decision a potential foundation for a new consensus on the regulation of abortion.

The most obvious factor is the emergence of a new majority on the court after the confirmations of Chief Justice John Roberts (replacing William Rehnquist) and Justice Samuel Alito (replacing Sandra Day O'Connor). The court voted 5-4 to uphold the 2003 federal ban, changing course from a decision in 2000 striking down a ban in Nebraska.

Another factor is the justice who now casts the swing vote on many issues, Anthony Kennedy. Conservatives have thought him an unreliable jurist for years. Yet he wrote yesterday's decision upholding the federal ban (and also voted to uphold Nebraska's). He writes that the government has a "substantial, legitimate interest in preserving and promoting fetal life." He also writes that "the government may use its voice and its regulatory authority to show its profound respect for the life within the woman." (Text of the opinion here.)

When such language is codified in a court decision, it is not mere theory but legal precedent - which leads to yet another factor.

Supreme Court decisions are maps for state legislatures to draft laws that will survive federal judges' scrutiny. Legislators all over the country now have a new definition for how to regulate abortion under Roe v. Wade.

Many will start with the government's "substantial, legitimate interest in promoting fetal life." They will also note that the federal ban makes no exception for the "health" of the mother - which would be interpreted broadly - but only for the "life" of the mother. This regulation, according to the high court, is constitutional. And these legislators will start drafting state laws about how late abortions can be performed.

Ultimately yesterday's decision gives initial success to a strategy pro-life advocates have been using for several years. Instead of seeking that Roe v. Wade be overturned outright, they have sought to make it irrelevant. If the Supreme Court gives states more authority to regulate abortion without overturning Roe, the effect will be to make the 1973 ruling a dead letter.

All of these factors may lead to a moderate national consensus: abortion should be regulated, state legislatures are the appropriate bodies for doing so, and the democratic debate over the details can now begin. Such a consensus would not end abortion, but it could end abortion as birth control. It could also produce a healthy honesty about abortion's violence against babies and women.

Regardless, the great thing is that yesterday the court rid the nation of a barbarity.