Saturday, April 21, 2007

Liberals on Supreme Court Create Bad Legal Reasoning, Then Critique Responses Trying to Respond to Their Logical Mess
In 2000, when the Supreme Court ruled that states could not prohibit partial-birth abortion, Justice John Paul Stevens wrote a concurring opinion in which Justice Ruth Bader Ginsburg joined. “Although much ink is spilled today describing the gruesome nature of late-term abortion procedures, that rhetoric does not provide me a reason to believe that the procedure Nebraska here claims it seeks to ban is more brutal, more gruesome, or less respectful of ‘potential life’ than the equally gruesome procedure Nebraska claims it still allows. . . . [T]he notion that either of these two equally gruesome procedures performed at this late stage of gestation is more akin to infanticide than the other, or that the State furthers any legitimate interest by banning one but not the other, is simply irrational.”

The line-up on the Supreme Court has changed: Justice Samuel Alito has, mercifully, replaced Justice Sandra Day O’Connor. So the result has changed as well: Earlier today the Court ruled that laws against partial-birth abortion are constitutional (while leaving open the possibility that they could be applied unconstitutionally). This time, Justice Ginsburg wrote in dissent, joined by Stevens and the other two liberal justices. The dissenters raise the same objection that Ginsburg and Stevens had seven years ago, albeit a bit less pithily. They even quote the earlier opinion. Their argument deserves an answer.

Partial-birth abortions are not really worse than other methods of late-term abortion. There is indeed something irrational about concluding that a method of killing a seven-month-old fetus should depend on the location of his foot. But just who is responsible for making a fetish of location in the first place? It is the Supreme Court itself that has declared — with no support in the Constitution — that what distinguishes a fetus with no claim to legal protection from an infant with such a claim is whether it is in the womb. The child’s stage of development does not really matter in this jurisprudence: A premature baby has more legal protections than a full-term fetus. In an earlier abortion case, Justice Stevens himself has suggested that a “9-month-gestated, fully sentient fetus on the eve of birth” is not “a human being.”

Legislators seeking to ban partial-birth abortion are, therefore, trying to work around the irrational policy the Supreme Court, with the blessing of these dissenters, has created. They are trying to mark an outer limit to that policy: If children within the womb are not going to be protected, then at least children partway outside it should be.

This reminds me of George Will's critique of legal reasoning granting different rights to babies based on the trimester in order to show how they are legislating. If the human gestation period was a prime number, how would you divvy up a baby's rights based on age? If you have different amounts of rights based on the divisibility of an integer, you have questionable legal logic.

Via Physics Geek Jesus Freak.


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