Tuesday, April 24, 2007

Abortion Comment Answered

In response to my post focusing on the latest move of the U.S. Supreme Court to uphold the Partial-Birth Abortion Ban Act as constitutional, I received the following response from an anonymous commenter:

"just to clarify, from what I understand about this article, you're simply saying that the Supreme Court's desicion against abortion was made in order to keep them out of hot water by trying not to upset the majority of the U.S. population and was not influenced by the constitutionality... However, what happens when nothing about a topic is included in the constitution; how would they decide the outcome? right now, we are facing a new millineum, and it's accompanied by a new culture and overall new views on many different things, including the never ending arguement over what exactly is moral... The Supreme Court's interpretation of a subject like abortion obviously must change according to the time era, seeing as something that may seem unconstitutional a couple decades ago may seem constitutional now, and vica versa (like slavery)... And seeing as for the second time in a row the Supreme Court upheld its desicion regarding the banning of partial birth abortions (the first time being with different justices), it is obvious that they do not find it to be moral, but overall and most importantly, they do not find it to be constitutional..."

I'll go though this comment, point by point, offering my opinion and analysis of the issues that were raised and that need to be addressed.

"
you're simply saying that the Supreme Court's desicion against abortion was made in order to keep them out of hot water by trying not to upset the majority of the U.S. population and was not influenced by the constitutionality"

Not at all; the premise of my argument lies in the principal that the role of the United States Supreme Court is not to interpret collective morality nor to uphold the will of the majority. The Framers, predominantly Madison and Jefferson, were very clear about the role of the judiciary in our constitutional republic. I was directly responding to Steve Kennedy, who contended that the ruling is justified as it has a support of the popular majority of this country.

"what happens when nothing about a topic is included in the constitution; how would they decide the outcome?"

The correct answer to this question would require several pages of discourse, so, let's focus on the issue of abortion, as that is our topic of discussion. Though the Framers certainly did not make any Constitutional provisions pertaining to abortion, the debate over abortion lies within the question of whether its prohibition would violate the citizens' right to privacy through the Due Process clause, enumerated in the 14th amendment, which is in the Constitution.

"right now, we are facing a new millineum, and it's accompanied by a new culture and overall new views on many different things, including the never ending arguement over what exactly is moral... The Supreme Court's interpretation of a subject like abortion obviously must change according to the time era..."

As the U.S. Supreme Court Justice George Southerland proclaimed, "A provision of the Constitution...does not mean one thing at one time and an entirely different thing at another time." Though constitutional perception by justices in cases as Plessy v. Ferguson surely reflected the views of the contemporary era, there is such a thing as an "incompetent judge." Am I stating that the current judiciary is incapable of carrying out their impartial duty of providing a check against the encroachment of the majority and the legislative/executive power? Perhaps so. By "incompetent," however, I mean one that does not utilize the process of textualism in interpreting constitutional law. In the words of Clint Bolick, "textualists start with the plain meaning of the text, but if it is ambiguous, they will consult the structure, purpose, and history of the provision." It seems to me that several of the current justices are endeavoring in what some call legal realism, essentially dictating laws from the bench. After all, how can it be justified to argue, as the majority of the court did, that
"The Act’s failure to allow the banned procedure’s use where ” ‘necessary, in appropriate medical judgment, for preservation of the [mother’s] health,’ ” Ayotte v. Planned Parenthood of Northern New Eng., 546 U. S. 320, 327-328, does not have the effect of imposing an unconstitutional burden on the abortion right."?

"And seeing as for the second time in a row the Supreme Court upheld its desicion regarding the banning of partial birth abortions (the first time being with different justices), it is obvious that they do not find it to be moral, but overall and most importantly, they do not find it to be constitutional..."

I am a little bit curious as to which cases you're referring to. The only other case that specifically dealt with partial abortions and that included a different lineup of judges was in April of 2000 ( Stenberg vs. Carhart), when the U.S. Supreme Court struck down a Nebraskan law that prohibited the procedure.

Hopefully this will serve as a medium for facilitating further debate. Thanks for your input!

1 comment:

Anonymous said...

lol, you need to finish your homework earlier so that I can reply to this...