Legalities

Justice Ginsburg deserves some credit here: I think she's correct that Justice Kennedy has a paternalistic attitude. If abortion is an act fraught with consequences for others, then it is paternalistic for Justice Kennedy to insist that the government must continue to protect that very act. 72% of American women believe that all forms of second-trimester abortion should be illegal, but Kennedy seems to think he knows best.

Your post contains more insight into the decision than the dozens of op-eds, editorials and reporting about the decision since Wednesday. Just like your book. Thanks for giving us Sup. Ct. junkies a fresh look at the Court. It's long overdue.

If Kennedy believes that Gonzales v. Carhart is at all like Stenburg, he's turned his back on federalism. The commerce clause is presumably the constitutional basis for enacting the so-called partial birth abortion ban, and I would like to think that the federal government's interests thereunder should not be equated to the interests of a State or the States, collectively. Otherwise, one could justify federal jaywalking laws, for example.

Ginsburg is right about the paternalism, but not vis-a-vis a woman. The opinion has a very paternalistic attitude toward the "living fetus".

Ginsburg was wrong when she stated that the opinion smacked of ancient notions of a woman's role in society. It smacks of nature's role for women in society, by this i only mean that it regulates abortion--a procedure that only women can have. Otherwise it says little about a woman's role in society.

This is the best explanation I've read of the decision to uphold the federal ban on partial birth abortion, along with the whole Casey/Stenberg/Kennedy KNOT that is such a part of it.

I also now have a clearer idea of what the decision will lead to (and why) as far as additional restrictions go. (I see that there will now be significant further state restrictions, but I'm also wondering if there might not be some more federal restrictions, since this decision was about a federal ban. Well, there probably will not be any further federal restrictions coming out of the current Democratic congress, will there).

I also see that there is NO CHANCE Kennedy will ever vote to overturn Roe, and this is something I hadn't fully realized until now. I'd harbored a hope he might change his ways with Roberts and Alito there. I no longer have that hope after reading Jan's comments.

So it's obvious that the only way Roe is going to get overturned is if another conservative in the vein of Alito and Roberts is appointed to the Court. If instead someone with a moderate streak in them like Kennedy is appointed, Roe will not be overturned. Because of that, some Republicans who are "socially liberal" will be pushing for the next nominee to be along the lines of Kennedy (like some "socially liberal Republican" posters on some Republican blogs are currently doing -- like a poster named Dienekes at Confirmthem did yesterday). Conservatives will not be taken in by the twisted, deceptive reasoning of these socially liberal Republicans.

All in all, this was a very informative post by Jan -- much like her book.

Pete:

As Justice Thomas stated in his concurrence, the Commerce Clause was not at issue in this case and was not being ruled on.

I don't know if Justice Kennedy would be willing to look at a federalism challenge to the law, but you can't say that he's completely turned his back on the concept based on this ruling.

This post is a really insightful perspective into Justice Kennedy's thinking on this case and its greater significance. Spurred by your recollections, I just listened to the bench reading of his dissent in Hill v. Colorado . Very poignant, indeed. I tend to forget how good J. Kennedy is on Free Speech jurisprudence, focusing instead on the more capricious turns he takes meandering through other areas of Constitutional law (e.g., the rest of the First Amendment).

Incidentally, I am the one who asked you the question about J. Kennedy and BCRA at the RNLA event last month. I can certainly see the basis behind your view that he will side with the "conservatives" on campaign finance law. I hope you're right.

Once again, I greatly enjoyed your book and your discussion of it at the Washington conference. Best of luck with its continuing success.

In the light of this partial birth abortion ruling, pro life social conservatives need to be very watchful of what some sneaky "social liberal republicans" are going to be pushing for the next Supreme Court opening. They are going to try to keep a conservative in the vein of Alito and Roberts from being nominated. For example, they are going to try and keep Janic Rogers Brown from being nominated, because she is a solid conservative, which they are not.

They are going to try to nominate someone to the left of Roberts and Alito. They are going to try to nominate someone who will not overturn Roe and Casey but instead will only add restrictions to abortion. That is their strategy. It's also the Giuliani strategy, which is why he nis so popular with social liberal Republicans. It won't work, but it is their strategy anyway.

One example of a social liberal Republican pushing this strategy even now is a poster at Confirmthem named Dienekes, who seems to be a planted mouthpiece on that blog for social liberals on judicial nominations (part of the Senator Specter wing of the party). He may even be a mouthpiece for Specter's staff. He is a person who argues against Brown for the Supreme Court. He also is a person who pushes Alberto Gonzales for the Supreme Court. And he seems to be tied up with another poster over on the confirmthem blog named Dave2 who pushes other social liberals like Consuelo Callahan for the Supreme Court and says Senator Specter is the best Republican on the judiciary committee.

Not everyone at confirmthem is a social liberal Republican (not by any means, many are strong social conservatives). But those like Dienekes are representative of the sneaky tactics social liberal Republicans will use to keep true conservatives like Roberts and Alito from being nominated again. Beware of them.

The problem I see with this is a simple fact of life. I think abortion is wrong but women want all the say in it because it is their body. I was reading online the other day about a man is being charged with first degree murder for aborting his own child without his wife's consent.
Again for all I don't think abortion is right unless there is something majority wrong with the pregnancy resulting in death for one or the other.

--Why should men get consent from the women to abort their own child when women don't have to get consent from them men when they abort the children? Why is it okay for women to abort a child and why is it when a man aborts their own child it is called murder?
Again I don't think what he did was right by any stretch of the imagination but I think we need to seriously sit down and rethink the laws considering abortion because people will start to make cases like this one. I think we should not allow abortion for people just because it is there it is their body they have a right to do what they wish to their body. There is a living think that is in their body existing on it that the woman produced but that thing that child that infant is not her body it is a separate entity connected to her body.