Had a great weekend in Cooperstown, more on that to follow in a day or two. For now I just want to touch on Carhart II, the Supreme Court case about Partial Birth Abortion (or Dilation and Extraction) that came down last week.
I haven't read the opinion yet, and unless I get really motivated I probably won't. I'm not sure how Kennedy presented the arguments, or which he chose, or what exactly he said, but I trust him to write pretty mainstream, well-elucidated opinions. As far as the Justices go I've found him to be pretty capable and routine. He's certainly keeps his personal passions out of the opinion better than a Justice Scalia or Ginsburg, and he's not as, um... (what's a nice way to say slow? Oh nevermind, I don't want to slander - well, I guess this would be libel - a Supreme Court Justice. Especially as a practicing attorney. I'll leave you to guess who I was going to mention.)
Anyways, what's interesting to me isn't so much the decision or the reasoning of the decision, but rather it is the reaction to the decision.
I haven't seen much of a reaction from the pro-life community. They've said that they approve of the decision, and that it might be cause for hope in future efforts to restrict abortion. But it certainly isn't going to change their legislative or political agenda; they've been working hard for a long time, and they're going to continue doing so, regardless of how this case turned out. Maybe even more important is that they don't see this as a huge victory. Carhart II didn't restrict access to abortion, and it won't decrease the numbers of abortion. It only restricted a method of abortion. So it wasn't a huge victory for pro-life people.
Despite this fact, it seems the pro-choice advocates are up in arms about this decision. The reason is that they perceive this as a big, big loss.
Why? Because until this case came down last week, the Supreme Court jurisprudence was pretty much "all pro-choice, all the time". I can't think of a single other case, other than ones permitting parental notification laws, where the pro-choice advocates lost. So the simple fact that they lost a case is in itself a huge blow to the pro-choice movement.
Even more startling is that the Court didn't exactly follow the bright-line tests (i.e. "there must be a health exception for the bill to be legal") that they had used in every single other decision.
The fact that the Court moved away from these bright lines can be seen as cause for worry for pro-choice advocates, and cause for hope for pro-lifers. Looking at it more neutrally (and despite my pro-life positions, I'm trying to analyze this in a more detached light), it seems maybe the Court has finally decided to work for a balance.
Like I said, until recently it had been all pro-choice, all the time. There had been bright line rules instead of balancing tests (which are common in just about all other areas of Constitutional jurisprudence, even free speech!), and those bright-line rules universally favored only the pro-choice interests. It wasn't difficult to see that the scales were tipped entirely in one direction.
Now, the Court seems to have signaled (though I won't be confident saying that is true until we get another similar decision) that they're willing to try a new approach to the abortion question. This doesn't guarantee any future results down the line, and maybe the balance will be struck exactly where it is now, all in favor of the pro-choice position. But the possibility exists.
For pro-life advocates, it's a small sign that they should continue with the hope they already had. For pro-choice advocates it's a sobering realization. The Court has now indicated that losing a case is a possibility for the pro-choice position. That's something they've never had to deal with before.
The motion to defeat it is repeated