SCOTUS upholds ban on Partial-Birth Abortion

Today, the Supreme Court upheld Congressional legislation passed in 2003 that banned a particular technique for performing an abortion. The decision is significant for being the first time the Court has upheld any significant limitation on the methods for performing an abortion, but probably does not represent a significant shift in the Court’s direction on abortion, since the swing vote in this decision, Justice Kennedy, is very unlikely to overturn Roe or Casey. There is extensive commentary throughout the blogosphere on the decision today, but two posts made good points that I thought were interesting.

From the judicial blog, ConfirmThem ‘Reid has some splaining to do’

 “A lot of us wish that Alito weren’t there and O’Connor were there.”

That’s Senate Majority Leader Harry Reid’s puzzling reaction—at a press conference—to today’s Supreme Court decision upholding the federal partial-birth abortion ban. This remark from a man who voted for the partial-birth abortion ban found constitutional today and against an amendment to the bill declaring that “Roe v. Wade was appropriate and . . . should not be overturned.”

It’s definitely a curious reaction from someone who voted for the ban. My first question was whether or not he actually did vote for the ban, but this page seems to confirm that he did. (Also a quick Google of “Reid vote partial-birth abortion” revealed several other sites that say the same thing).

Another site, Eminent Domain, has a post on the decision and in particular the short concurring opinion from Justice Thomas, joined by Justice Scalia. The concurrence agrees with the judgment because it follows existing Supreme Court precedent on abortion, but goes on to point out that the two justices find all the existing Court’s precedent without basis in the Constitution and furthermore, the justices question Congress’ power to legislate in this area under its Commerce Clause power. Both points are ones that are radically in opposition to the Court’s precedent in those areas in the past half-century and probably do not have a majority on the Court. However, the author speculates as to why the other two justices in the majority did not sign on to this concurrence. Of the reasons he gives, this one is one that I haven’t seen elsewhere and seems plausible.

4. Roberts and Alito did not want to alienate Kennedy. We all know that Justice Kennedy can be a sensitive guy. Imagine how it would look for him to be writing for a 5-vote majority where everyone else joined another opinion. And this other opinion would go much, much further than Kennedy’s. It’s not good internal politics to leave Kennedy hanging out there on his own. With the current make up of the Court, Kennedy is the swing Justice and the one to woo. Roberts and Alito might be making a play for his vote, just like Justice Stevens did in the greenhouse gas case.

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