Sunday, April 18, 2010

Conservative judicial activism?

Sometimes, it’s what isn’t said that’s more important than what’s said.

Nebraska has recently passed the “Pain Capable Unborn Child Act,” which outlaws abortions in the second half of the second trimester of a pregnancy (after 20 weeks) because, according to the Unicameral, that is the point at which the fetus can feel pain.

Sounds relatively straightforward, right? Another attempt to ban later-term abortions from a conservative state in the ongoing pro-choice vs. pro-life battle, right? Nothing to see here, move along.

As college football analyst Lee Corso would say, not so fast, my friend. Nebraska’s new law is more than just your run-of-the-mill pro-life trial balloon tossed into the courts. This law is intended to challenge the fundamental basis of abortion laws in the United States.

Let’s take it from the top, though. In 1973, the Supreme Court decided in Roe v. Wade that abortion was a constitutionally-protected right that must be balanced against the state’s interest in the life of the unborn child. Roe defined viability as the threshold when the state’s interest outweighed the mother’s interest – in other words, once the fetus could survive outside the womb (was “viable”) then the state’s interest outweighed the mother’s interest and the state could restrict abortion access. In addition to keeping agitators on both side of the issue employed and well-funded for the last 37 years, that basic rule has been what has guided the courts in deciding the contours and boundaries of abortion law.

So what’s the big deal, you ask? It’s all about the premise. Nebraska’s law (like other “fetal pain” bills in states like Oklahoma and Texas) abandons the viability premise. Under Nebraska law, an abortion is illegal because the fetus can feel pain, regardless of whether it is viable or not.

That is nothing less than a frontal assault on the legal architecture of abortion law since Roe was decided in 1973. There’s no way that Nebraska’s new law could survive a legal challenge under current law. It could only survive if the Supreme Court uses a law like Nebraska’s to re-interpret the Constitution and change abortion law. Which is, of course, exactly what the pro-life community wants to see.

Now, this won’t happen overnight. There will be legal challenges to the constitutionality of Nebraska’s law filed, and they will take years to filter their way to the Supreme Court. Between taking the abortion bill to court and suing the Federal government over the health care reform bill passed earlier this year, the budget for Nebraska’s Attorney General office should be plenty stretched. Good thing the state is so flush with tax revenue.

(As an aside, I was discussing Nebraska’s new law with a very wise colleague of mine. She pointed out that the Tea Party faithful were quite upset about health care reform “stealing their freedom” by proposing a tax penalty for not buying insurance. They didn’t, however, seem nearly as upset about a bill that removed the actual freedom to receive an actual health care procedure. Good thing the Tea Party is a broad base of libertarian-minded independents and not just a collection of hard-core and somewhat cranky conservatives, right?)

So what’s going to happen once this gets to the Supreme Court? Tough to say, as we’re about to be treated to another episode of everyone’s favorite reality show, “Supreme Court Justice Confirmation.” But keep in mind, the Conservative Four (Scalia, Thomas, Roberts, and Alito) will be there regardless of who the rookie justice will be. And the Conservative Four have shown no hesitance to make dramatic changes in settled law – just go read about Citizens United and see how they turned decades of campaign finance reform on its’ collective head.

But, you might ask, shouldn’t the idea of judges making dramatic changes to settled law run counter to conservative ideals? Isn’t that – gasp – judicial activism that is so anathema to conservatives everywhere? Shouldn’t conservatives who believe in their principles just go to the ballot box and try to change law through the legislature instead of using the court to end run the will of the people, like they’ve loudly and consistently accused progressives of doing?

They should. I hope they do. I’m not holding my breath.

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