April 18, 2007

Meanwhile On The Lower Middle Corner Of Page Five

I’d been doing a good job of keeping my thoughts brief, until I perused the Fish Wrapper site today looking for news of something other than the massacre at Virginia Tech. Not that those terrible events weren’t worthy of considerable attention, but it occurred to me that there must be something else going on in the world. And there is.

Apparently unnoticed by much of the news-reporting establishment today is an unusually deadly day in Iraq, as six bombs throughout Baghdad killed more than 180 people and wounded more than 225 more, most of them in the large outdoor market where Senator McCain recently shopped for carpets in “perfect safety” while wearing a bulletproof vest and surrounded by a Praetorian Guard of elite servicemen. The Prime Minister of Iraq was so frustrated by the violence that he has ordered one of the top Iraqi Army officials arrested for dereliction of duty. That would be five and a half times the number of deaths in Baghdad today as there were in Blacksburg on Monday. Only one of those attacks was the result of a suicide bomber; the other were of more traditional variety.

I asked a while ago if the “surge” was working. The military has cautioned that there will be good days and there will be bad days. While we’re no longer really using the term “surge,” it sure looks like there are more “bad days” than “good days.” I don’t know that there are any good alternatives but to press on with anti-insurgency efforts, and hope against hope that at some point, the Iraqis will somehow form a common national identity out of its mosaic of ethnic and religious semi-tribal loyalties. We can’t leave, because Iraq would get torn into three parts – Greater Syria, Western Iran, and Nervous Kurdistan, only one of which would be particularly friendly to us and the existence of which could cause Turkey to withdraw from NATO. The fragmentation of the most important military alliance in human history would be a very bad unintended consequence of our invasion of Iraq.

Also today, the United States Supreme Court upheld a Federal anti-abortion law criminalizing certain kinds of mid- and late-term abortions. The procedures in question involve particularly gruesome techniques and it’s hard to generate a lot of sympathy for what is going on when it is described in such graphic detail. And the holding seems fairly narrow to me, about as narrow as would be possible to reach the result that the Court did. Justice Ginsberg disagrees with me on this point in her rather shrill dissent, but on the face of this holding alone, I think the sharpness of her criticism is not justified.

From a legal perspective, though, the reasoning is decidedly odd – especially considering that a nearly identical law from Nebraska was struck down as unconstitutional two years ago, finding no legitimate state interest in regulating the choice of medical procedures to perform an abortion. The invalid Nebraska law, as well as the validated Federal law, would apparently permit something like a C-section to remove a fetus, but not a vaginal extraction of the fetus during the procedure. (Neither law contained an exception for the protection of the mother’s life, presumable because of this.) The Federal interest that the Supremes validated today was protection of the potential human life of the fetus; however, if the governmental interest is protecting the life of the fetus, why should it matter how the pregnancy is aborted?

More oddly, the decision to regulate was made at the Federal level rather than by a state, which is where the critics of Roe v. Wade have always argued against that holding on federalism grounds – that the Federal finding of a liberty interest in a woman’s right to elect to terminate her pregnancy trumps a state’s police power interest in preserving the life of the fetus. So, if the State of Nebraska has no legitimate interest in regulating the manner in which a mid-term abortion are performed as part of its police power, where in the Constitution can a Federal interest in regulating this procedure be found?

The answer can only be found in the Commerce Clause. The “liberal” majority of the Court in Gonazles v. Raich now reaps the bitter fruit sown in that opinion aggrandizing Federal power. If it were a forced choice, I would rather have seen the Court uphold the Nebraska partial-birth abortion ban than the Federal one. That's what happens when decisions are made on the basis of politics, not principles. It will be interesting to see what unintended consequences this decision has that bite the conservatives back in the ass in a few years.

So I guess my per-post word-count average, which many Loyal Readers have been concerned with recently, will spike again. But that’s how it works, I guess; the world keeps on turning and there’s no news like bad news.

3 comments:

Salsola said...

I'm amazed that this law got passed in the first place. Congressional representatives must not have understood the procedure.

The procedures in question involve particularly gruesome techniques and it’s hard to generate a lot of sympathy for what is going on when it is described in such graphic detail.

I don't see how it's any more "gruesome" than 1) any other surgical procedure or 2) a dilation and extraction where the doctor doesn't partially extract the fetus from the womb before cutting it up.

The only reason to do it the banned way is because it's safer for the woman.

These are typically done in the second trimester. You know who the typical people are who need to terminate in the second trimester? People who find out about birth defects.

-- Spungen

Transplanted Lawyer said...

That's an interesting point -- of course, to a pro-lifer, birth defects are irrelevant.

Salsola said...

Not all pro-lifers. I think there are a lot of nuanced beliefs. Ironically, a lot of people who wouldn't want to ban all abortions may feel more comfortable banning this procedure based upon their misunderstanding of it. They may think they're banning late-term abortions altogether; think that the people who have these procedures are people who just changed their minds on a whim or didn't get around to it earlier; or that the procedure is somehow crueler to the fetus.

It's my understanding that sometimes this procedure is used to extract fetuses that have died in the womb; I don't know if that would still be legal.

You can see why I'd care about this, being a woman over 35 who might get pregnant again.


-- Spungen