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Wednesday, August 17, 2005

FRC: Roberts under Reagan

Posted by: Hammer / 11:20 AM

The latest missive from the Family Research Council seeks to allay the fears of its constituents that John Roberts might not be conservative enough for the Supreme Court:

...further memos from Roberts' tenure in the White House counsel's office show he referred to the practice of abortion as the "tragedy" it truly is. A further memo from Roberts shows he believes that the Roe v. Wade ruling would "permit some regulation of abortion--and even a ban on abortion--depending on the stage of the pregnancy."

Cases involving widely popular middle-ground abortion legislation, like a partial-birth abortion ban and parental notification, are scheduled to be in front of the Supreme Court in the next few years.

Wow. Sounds like Roberts can read. Good for him.

Roe v. Wade has always permitted regulation of abortion. As a legal conclusion, that's a great, big duh:

It follows that, from and after this point [the end of the first trimester], a State may regulate the abortion procedure to the extent that the regulation reasonably relates to the preservation and protection of maternal health. Examples of permissible state regulation in this area are requirements as to the qualifications of the person who is to perform the abortion; as to the licensure of that person; as to the facility in which the procedure is to be performed, that is, whether it must be a hospital or may be a clinic or some other place of less-than-hospital status; as to the licensing of the facility; and the like.

...With respect to the State's important and legitimate interest in potential life, the ‘compelling’ point is at viability. This is so because the fetus then presumably has the capability of meaningful life outside the mother's womb. State regulation protective of fetal life after viability thus has both logical and biological justifications. If the State is interested in protecting fetal life after viability, it may go so far as to proscribe abortion during that period, except when it is necessary to preserve the life or health of the mother.

Got that? No regulation in the first trimester. Some regulation during the second trimester. Regulations, including an out right ban, are permissible in the third trimester, except to protect the life or health of the mother.

I mention this because the FRC email makes me wonder: do people so consumed with abortion really know so little about the legality of abortion that Roberts's summary of the central holding of Roe v. Wade is noteworthy? No sitting judge would read Roe v. Wade differently -- many might decide the case differently, but the holding of the case, what it actually says, is not in dispute.

A final point about "middle-ground abortion legislation". There is wide support for a ban on what the FRC calls partial birth abortion. Rather than legislate a ban on the practice -- which would likely be constitutional -- the right has drafted legislation specifically to exclude as many Democrats as possible. They don't want Democratic votes on the issue. Specifically, the federal legislation to date has defined this procedure as being never necessary to preserve the life and health of the mother. This political tactic not only keeps some Democrats from supporting the legislation, but it also ensures that the legislation will be unconstitutional as written. You can ban all abortions in the third trimester, so long as you make an exception for the life and health of the mother. This is a medical decision, not a legislative decision.

I wonder, then, just what abortion opponents know about these facts? Do abortion opponents really want to ban abortion even if a doctor determines it is necessary to save the life of the mother? Or do they not know what they are trying to criminalize?


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