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Jewish World Review July 3, 2000 / 30 Sivan, 5760

Mona Charen

Mona Charen
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Abortion deforms the court again --
SEVERAL IMPORTANT Supreme Court cases were announced on June 28 to widespread and almost universally misplaced comment. Reporting on legal matters in the United States is appallingly confusing.

Television news followed the departure of Elian Gonzalez for Cuba, explaining that the Supreme Court had decided the boy belonged with his father. Not quite. Actually, not even close. The Supreme Court (and the lower courts) never considered whether Elian would be better off in the United States or Cuba, nor whether Juan Miguel Gonzalez had first claim on the child. The only issue for the courts was a relatively narrow question of administrative law, namely whether the Immigration and Naturalization Service had exceeded its authority or acted in an arbitrary or capricious fashion in ruling that only Juan Miguel Gonzalez could speak for the child.

As the Court of Appeals stated, one might disagree with the policy decision the INS made, but it was within the agency's lawful purview to make that decision. (By the way, both President Clinton and Attorney General Reno tried to evade responsibility for their own policy choice by asserting that they were merely carrying out the law. That was false. Under the law, they could just as easily have gone the other way.)

It is to be hoped that Elian will transcend the indoctrination and deprivation that awaits him in Cuba -- but it is wrong to suppose that he is there because the Supreme Court desired such an outcome.

In general, the Supreme Court decides matters of law, not policy; and court watchers have noted the enhanced deference to the legislative and executive branches shown by the Rehnquist Court. Conservative justices are believers in "judicial restraint" because they support the constitutional system -- a system that leaves most important powers in the people's hands.

Liberals believe judges should decide outcomes -- i.e., that judges should rule more like kings than like jurists. And unfortunately, when it comes to abortion, the Supreme Court tosses every principle of judicial restraint out the window and finds ways to reach the policy result it prefers.

Declaring Nebraska's ban on partial-birth abortion to be unconstitutional, the majority held that it placed an "undue burden" on the exercise of a fundamental right. In a lengthy dissent, Justice Clarence Thomas turns the majority ruling slowly on a spit, burning off one flimsy argument after another. Whereas the majority had argued that the Nebraska law failed to distinguish properly between D and E abortions and D and X abortions, Thomas provides a graphic description (which the majority shrank from) of the various methods used to abort second and third trimester pregnancies.

The D and E, the most common form of abortion for fetuses older than 16 weeks, involves inserting forceps into the womb and pulling the fetus out, limb by limb. As ghastly as this is, it is easy to distinguish from the D and X or partial-birth abortion, which the state defined as "partially deliver(ing) vaginally a living unborn child before killing the unborn child and completing the delivery."

Thomas had pointed words for Justice O'Connor, since in a different case, she had written that the failure to attempt to construe a statute in such a way as to avoid finding it unconstitutional was "plain error." Yet in this case, O'Connor ignored her own reasoning.

The majority argued that the statute ought to have contained an exception for the health of the mother, not just the life. But as Thomas points out, the exception the majority would require is big enough to swallow the rule. The majority would demand only that the doctor "reasonably believes" the procedure is in the woman's best interest. What abortionist would have trouble swearing to that?

Thomas concluded his dissent by noticing that the Supreme Court does not even bother to decide its abortion cases consistently. "We were reassured repeatedly in Casey that not all regulations of abortion were unwarranted and that the States may express profound respect for fetal life. ... The Court's abortion jurisprudence is a particularly virulent strain of constitutional exegesis. And so today we are told that 30 states are prohibited from banning one rarely used form of abortion that they believe to border on infanticide. It is clear that the Constitution does not compel this result."

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© 2000, Creators Syndicate