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Obama: Sounding Like Thomas and Scalia?

July 04, 2008 12:34 PM

The Supreme Court fired a shot last week that ricocheted into the political campaign when it struck down a Washington DC law that banned people from owning handguns. For the first time in history, the justices said the Constitution's 2nd Amendment protected an individual's right to keep and bear arms.

The decision was 5-4 and, as we've seen on contentious social issues, divided the justices along ideological lines. In this case, the conservatives opposing the gun ban carried the day. Liberals ended up in bitter dissent.

But here's the curious thing: both presidential candidates — Republican John McCain and Democrat Barack Obama — praised the conservatives' position. The same thing happened the day before in another sharply divided 5-4 case over whether states can execute people who rape, but do not kill, children. This time, conservatives lost, but again McCain and Obama were on the same side, blasting the liberals' decision striking down laws that allowed the death penalty for child rape.

You'd expect McCain to take those positions.  He has, after all, promised to nominate justices like Roberts, Alito, Scalia, Thomas. But on two of the biggest social controversies to reach the Court this year, Obama, too, sided with conservatives -- rejecting opinions by the liberal justices who, presumably, are of the kind he would appoint if elected President.

But that's nothing compared to Obama's most recent comments about the most controversial social issue of them all: abortion.

In a recent interview, Obama appears to back away from his long-stated positions on abortion (and a proposed federal abortion rights law he had co-sponsored), repudiate 35 years of accepted Supreme Court rulings on the issue and embrace a view on abortion restrictions that has been expressed on the Court only by Justices Thomas and Scalia.

Obama's remarks are printed verbatim in the interview, published yesterday in Relevant Magazine. Read them  — there's no mistaking that Obama says he no longer will support what's long been a cornerstone of the abortion rights debate: The Court's insistence that laws banning abortions after the fetus is viable (now about 22 weeks) contain an exception to allow doctors to perform them if necessary to protect a pregnant woman's mental health.

'I have repeatedly said that I think it's entirely appropriate for states to restrict or even prohibit late-term abortions as long as there is a strict, well-defined exception for the health of the mother. Now, I don't think that 'mental distress' qualifies as the health of the mother," Obama said. "I think it has to be a serious physical issue that arises in pregnancy, where there are real, significant problems to the mother carrying that child to term. Otherwise, as long as there is such a medical exception in place, I think we can prohibit late-term abortions."

Wow.

This has been a central battleground issue in the Supreme Court going back 35 years, to Roe v. Wade and Doe v. Bolton, when the Court ruled a woman had a constitutional right to abortion. The decisions said state's can ban all abortions after the fetus is viable -- but that any restrictions must include exceptions to protect a woman's physical and emotional health.

In the years since, anti-abortion groups have fought hard against mental health exceptions, arguing that they create giant loopholes that make abortion bans meaningless. Doctors, they argue, can always find a "mental health" exception. But abortion rights groups just as strongly argue the mental health exception is critical to preserving a woman's right to an abortion—and that the woman and her doctor must be allowed to make those decisions about her health without government interference.

In 1973, when the Court issued Roe and Doe — on the same day — it sided with the abortion rights groups and said states could not interfere with a doctor's medical judgment on whether an abortion was necessary.

"[M]edical judgment may be exercised in the light of all factors--physical, emotional , psychological, familial, and the woman's age--relevant to the well- being of the patient," said the Supreme Court in Doe, which was a companion case to Roe. "All these factors may relate to health . This allows the attending physician the room he needs to make his best medical judgment."

Obama's comments that he does not support mental health exceptions in so-called post-viability abortions (after 22 weeks) is squarely at odds with that holding, which remains the law of the land today.

Current Supreme Court jurisprudence is understood by lower courts to prohibit those flat-out bans unless the laws provide exceptions for a woman's mental health. Lower courts repeatedly have struck down laws that only provide an exception for serious physical issues as being contrary to Supreme Court precedent.

As an Ohio-based federal appeals court recently put it, "States must provide a maternal health exception to an abortion ban that encompasses situations where a woman would suffer severe mental or emotional harm if she were unable to obtain an abortion."

Indeed, only Thomas and Scalia have expressly supported the position that a mental health exception is not necessary. They penned a dissent to that effect in 1998, when the Court refused to take up the Ohio case that struck down a state law because it did not include an exception to protect a woman's mental health.

And last year's case upholding a federal law that banned a specific type of abortion procedure — so called "partial birth" abortion — doesn't change the analysis. It was the first to allow the government to ban a specific type of abortion procedure. And it was the first to allow that ban without an exception for a woman's mental health.

But that case focused only on one type of abortion procedure -- not an outright ban of all abortions after viability. And even there, the Court refused to rule out "partial birth" abortions in specific cases where a woman can show her mental or physical health requires it.

That case was immediately and harshly criticized by abortion rights groups across the spectrum — as well as by Obama, himself. He said last year that the decision "dramatically departs from previous precedents safeguarding the health of pregnant women."

Here's how Planned Parenthood President Cecile Richards explained it:

"The U.S. Supreme Court's ruling yesterday in this case represents a seismic shift for the Supreme Court and the nation. With new Bush appointees, this court has unraveled more than 30 years of precedent protecting women's health," Richards said. "For the first time, the court told women that, when their health is at risk during pregnancy, deciding what to do is no longer up to them and their doctors, it is instead up to politicians.  The future of legal access to abortion in this country is grim."

Richards made her remarks the same day Congress introduced federal legislation to preserve a broad right to an abortion -- including where necessary to protect a woman's mental health.

Said Richards at the time: "It's time for Congress to stand up for women's health, women's safety, and a woman's right to make her own medical decisions. American women deserve the protection of federal law to preserve their right to make personal health care decisions free of government intrusion. We call on Congress to pass the Freedom of Choice Act."

The Freedom of Choice Act specifically allows abortions after viability where necessary to protect a woman's health, and the legislation refers repeatedly to the guarantees of Roe and Doe, which protect the right to an abortion where necessary for a woman's physical and mental health.

One of its co-sponsors? Barack Obama.

So here are some questions for the Obama campaign: Does Obama still support the Freedom of Choice Act? Would he appoint justices like Ginsburg — or like Thomas, Scalia, etc.? Would he direct his Solicitor General to file a brief supporting state abortion bans that did not include a mental health exception?

And questions for the McCain campaign: How can you criticize Obama for allegedly shifting positions when McCain himself is reportedly considering as a running mate Mitt Romney -- a man whose shifting views (from pro-choice to pro-life!) — make Obama seem fixed in concrete?

I've asked both campaigns for answers, so I'll update when I hear back. In the meantime, Happy 4th!

July 4, 2008 | Permalink | User Comments (137)

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