ONCE AGAIN, "AN EXERCISE OF RAW JUDICIAL POWER"

I am optimistic enough to believe that, one day, Stenberg v. Carhart will be assigned its rightful place in the history of the Court's jurisprudence beside Korematsu [1944, upholding the internment of Japanese-American citizens] and Dred Scott [1857, denying legal personhood to African-Americans].

Today's decision, that the Constitution of the United States prevents the prohibition of a horrible mode of abortion, will be greeted by a firestorm of criticism--as well it should.

--Justice Antonin Scalia, dissenting in Stenberg v. Carhart

These are the Supreme Court's days of infamy:

* January 22, 1973--Roe v. Wade and Doe v. Bolton make abortion on demand a constitutional right.

* June 29, 1992--Planned Parent-hood of S.E. Pennsylvania v. Casey reaffirms and reformulates Roe v. Wade: (1) Before " viability the woman has a right to choose to terminate her pregnancy." (2) "A law designed to further the State's interest in fetal life which imposes an undue burden on the woman's decision before fetal viability" is unconstitutional. An "undue burden is shorthand for the conclusion that a state regulation has the purpose of or effect of placing a substantial obstacle in the path of the woman seeking an abortion on a nonviable fetus." (3) " Subsequent to viability, the State in promoting its interest in the potentiality of human life may, if it chooses, regulate, and even proscribe, abortion except where it is necessary, in appropriate medical judgment, for the preservation of the life or health of the mother." [Justice Stephen Breyer summarizing the status of the law after the Casey decision, in Stenberg v. Carhart]

* June 28, 2000Stenberg v. Carhart rules that "Nebraska's statute criminalizing the performance of 'partial birth abortion[s]' violates the federal Constitution, as interpreted in Casey and Roe" because it "lacks the requisite exception 'for the preservation of the health of the mother'" and "imposes an 'undue burden' on a woman's ability to choose an abortion." [From the syllabus of Stenberg] So there you have it: "A 5-to-4 vote on a policy matter by unelected lawyers" overcomes "the judgment of 30 state legislatures" that partial-birth abortions should be banned [Justice Scalia]. Once again, the Court engaged in "an exercise of raw judicial power," such "that the people and the legislatures of the 50 States are constitutionally disentitled" to regulate abortion [Justice Byron White, dissenting in Doe].

After Stenberg anything goes. It's more than abortion on demand. It's really a right to a dead child as long as the abortion happens an instant before the completion of natural birth, by whatever means the woman and her abortionist decide--she can always claim the "requisite health exception." As Justice Clarence Thomas notes in his dissent in Stenberg, "the mere invocation of ' abortion rights' trumps any contrary societal interest."

The pro-abortion majority of "unelected lawyers" on the Court uses two clubs in Stenberg to destroy the handiwork of Nebraska's elected legislature: the "undue burden" test and the "health exception."

The "undue burden" standard is so vague that a determined Court majority can find fault with any meaningful regulation or restriction on abortion even after viability. Beyond that, a greatly expanded "health exception" allows any abortionist to obstruct a legislature's will.

Justice Thomas observes that Casey required "that a health exception must be available if 'continuing her pregnancy would constitute a threat' to the woman." States supposedly could still regulate how abortions were done after viability. Although that was never really true, pretensions were still made. No more. With Stenberg, the "health exception" entitles a woman not only to have an abortion, but also allows her and her abortionist to pick any abortion method they want as long as they claim that the particular method offers a health advantage.

Justice Thomas puts it plainly: "If Nebraska reenacts its partial birth abortion ban with a health exception, the State will not be able to prevent [abortionists] from using partial birth abortion as a routine abortion procedure. The majority's insistence on a health exception is a fig leaf barely covering its hostility to any abortion regulation by the States"--a hostility shared by Bill Clinton and Al Gore.

How did we get to this point? It started when Justice Harry Blackmun discovered a right to abortion in a "right of personal privacy" rooted "in the penumbras of the Bill of Rights" and the " liberty" protected by the Due Process Clause of the Fourteenth Amendment (Roe v. Wade).

A "penumbra" is the region of "near-shadow" that surrounds the cone of shadow ("umbra" in Latin) projected by the moon during a total solar eclipse. The image of a solar eclipse is really quite appropriate: In order to see a "right" to abortion in the Constitution, Justice Blackmun had to block out the bright light of the Constitution--a "constitutional eclipse," so to speak. You are prone to find all kinds of constitutional "rights" if you avoid actually looking at the Constitution.

As to the abortion "liberty" under the Fourteenth Amendment, Justice Scalia observed in Casey that applying its constitutional interpretation would also make bigamy a protected "liberty."

In discerning "fundamental liberties" which are not explicitly enumerated in the Constitution, but are presumed to be protected under the Due Process Clause, the Supreme Court typically requires that such liberties either (1) are "implicit in the concept of ordered liberty" without which "neither liberty nor justice would exist" or (2) are "deeply rooted in this Nation's history and tradition."

When the pro-abortionists on the Court look at the Constitution, they do not find the right to life without which--obviously--" neither liberty nor justice would exist." But they do find the right to abortion on demand, even though it clearly is not " deeply rooted in the Nation's history" and had to be imposed by " unelected lawyers," setting aside the judgement of 50 state legislatures in Roe, and a majority of state legislatures in Stenberg.

In his dissent in Thornburgh v. ACOG (1986), Justice White observed, "either of the basic definitions of fundamental liberties, taken seriously, indicates the illegitimacy of the Court's decision in Roe v. Wade." In Stenberg, the Court has compounded the illegitimacy of Roe. Now, even the right to a partial-birth abortion is a "fundamental liberty." Are there no limits?

And do you need anything else to motivate you? But whatever you do, don't send letters to the Supreme Court. Instead send us a check and work very hard.