Pravda-on-the-Merrimack was late to join the liberal press’s piling on regarding the recent U.S. Supreme Court decision upholding a ban on partial-birth abortion. But Pravda-on-the Merrimack’s contribution is particularly vapid, even for Pravda-on-the-Merrimack.
The op-ed begins, "
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In the 1992 abortion case known as Casey, U.S. Supreme Court Justices Anthony Kennedy, Sandra Day O’Connor and David Souter co-wrote an opinion that purported to clarify the law of the land. Eight years later, in a partial-birth abortion case known as Stenberg, those justices no longer agreed about what they had jointly ruled."
That is because Casey was a political, not a legal decision. The case introduced the "undue burden" standard, which is a political, not a legal, judgment. Unlike due process or equal protection there is no constitutional text or history or precedent to guide a judge deciding when a law regulating abortion is an "undue burden." An "undue burden" is simply a matter of opinion, which made and makes cases like Stenberg inevitable.
The Monitor claims that "there is no supporting logic" for Justice Kennedy’s opinion. Try this: "Under precedents that we assume to be controlling, the Act would be unconstitutional if it subjected women to significant health risks. There is documented medical disagreement on this question. In the face of this uncertainty and given the availability of other abortion procedures that are considered to be safe alternatives, the Court’s precedents instruct that the Act survives a facial attack." In other words, the Court deferred to Congress’ determination that the ban would not result in significant health risks for women. How illogical! After all, the judges’ years of legal training and experience obviously makes them better suited to make medical judgments.
