Pro-abortion and pro-centralization forces have won another victory in the battle over partial-birth abortion. As I detailed in this space last month, a three judge panel of the Seventh Circuit Court of Appeals, breaking with other federal courts, upheld Wisconsin’s and Illinois’ laws against the procedure in October 1999. Planned Parenthood, the misnamed Hope Clinic (the institution which challenged the legality of the Illinois ban), and other abortion advocates asked the entire Seventh Circuit court to reverse or stay the decision.
The issue cleaved the full bench right down the middle: In a 5-5 decision, the panel’s opinion was allowed to stand. (It would have taken a majority of the full court to overrule the panel.) Illinois and Wisconsin could now enforce their statutes. Just in the nick of time, however, John Paul Stevens, the U.S. Supreme Court justice charged with granting emergency stays on matters involving possible violations of constitutional law in the Seventh Circuit, effectively reversed the 5-5 decision, granting a stay of enforcement.
Stevens’ stay is only in effect until the Court decides whether to grant a writ of certiorari, to review the decision of the Seventh Circuit panel on its merits, and to reconcile the conflicting law on partial-birth abortion in the federal courts. For certiorari to be granted, at least four justices must indicate a desire to hear the case.
It is a curious system whereby one man has the awesome power of overruling (even temporarily) the legislatures of two sovereign states, but that’s current constitutional law. No one is quite sure when the Court will decide whether to take the issue, and no one knows how the Court will rule if it does take the case. Illinois Attorney General James Ryan had opposed the stay, but Wisconsin Attorney General James Doyle appeared to favor it, hoping that the Supreme Court would resolve the issue once and for all. Petitioning the Supreme Court for a stay, a group of Northwestern University obstetricians, apparently unaware of the oxymoron they employed, declared that “The Constitution simply does not tolerate bans on safe abortion.” In contrast, Barbara Lyons, the executive director of Wisconsin Right to Life, noted that “The real losers in this situation are the babies who can continue to be killed in the process of being born.”
The stakes could not be higher. If the Supreme Court upholds the Wisconsin and Illinois bans, there is an opportunity for state governments not only to regulate abortion, but actually to prohibit some of its forms. If this happens, and if state governments begin to assert their historic right to legislate in purely domestic matters, it would be a tremendous victory in the great war to preserve the Constitution and its original principle of dual state and federal sovereignty.
There still seems to be a consensus among judges and scholars that states can ban the abortion of viable fetuses, as long as the life of the mother is not thereby endangered. Since the partial-birth abortion prohibitions of Illinois and Wisconsin contain exceptions for cases in which the life of the mother is threatened, the Supreme Court could uphold them. Those who have attacked these laws have either claimed that they are too vague (and therefore might hinder procedures that could be performed on non-viable fetuses), or insisted that exceptions must be made to preserve the “health” as well as the “life” of the mother. An exception for the “health” of the mother, of course, could be construed to include any unfavorable mental state; in effect, any time the mother is “distressed” by her pregnancy and wants to terminate it, her “health” is at risk.
Of course, the Supreme Court could reverse the Seventh Circuit on these “overbreadth” or “maternal health” grounds. To do so, however, would call attention to the arbitrary nature of the Court’s abortion decisions, and there are wise men and women on the Court who might fear to tread there. One of the justices has rushed in, but unless three more decide to grant cert, regulation of partial-birth abortion could be left to the states, as it should be.
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