In mid-March, 2003 the Senate finally ended the years-long battle over partial-birth abortion. With a surprisingly strong margin, 63-33, the Senate finally allowed passage of a ban on this gruesome procedure.
This was a major victory for pro-life forces, but it is far from the end of the war. As a spokesperson for the National Abortion Rights Action League (NARAL) said just prior to the passage of the ban, "Legal strategy is more likely to be successful than a legislative strategy.... The courts stand as bulwarks against legislative intrusion upon important liberties."
For many years, liberal activists have relied on the courts to provide them victories that they could never win through legislation. After all, those legislators answer directly to the voters, unlike activist judges.
This was true when pro-life forces in Nebraska managed to pass a similar ban in their state legislature. That new law was almost immediately challenged and was finally ruled unconstitutional by a 5-4 vote in the United States Supreme Court.
The pro-life community continued to fight for a federal ban, believing that one could be written to withstand a Supreme Court challenge. One thing is certain, the newly passed legislation will have to withstand a challenge in the courts, and one will come very quickly.
Hurdles after the Congressional Ban
Now that Congress has passed a ban on partial birth abortion, there are two major hurdles that the pro-life community will have to clear in order to protect its hard-won victory when the case reaches the Supreme Court. The first is Justice Sandra Day O'Connor. In the Nebraska case, O'Connor was the swing vote that handed abortion advocates their victory. Many in the pro-life community have believed for some time that O'Connor's vote could swing in support of a federal ban if her two concerns were addressed. In the Nebraska case she voted against the ban because it extended beyond the partial birth procedure and she felt there should be an exception in the ban to protect the health of the mother.
The problem comes in the way that "exception" is defined. The Nebraska ban provided for what seemed to be a reasonable exception. It read, "unless such procedure [partial birth abortion] is necessary to save the life of the mother whose life is endangered by a physical disorder, physical illness, or physical injury, including a life-endangering physical condition caused by or arising from the pregnancy itself."
Unfortunately, when O'Conner talked about needing an exception she was referring to the concept that was laid out in the majority decision, written by Justice Breyer. His contention was that the procedure was necessary because "(1) it reduces the dangers from sharp bone fragments passing through the cervix, (2) minimizes the number of instrument passes needed for extraction and lessens the likelihood of uterine perforations caused by those instruments, (3) reduces the likelihood of leaving infection-causing fetal and placental tissue in the uterus, and (4) could help to prevent potentially fatal absorption of fetal tissue into the maternal circulation."
In spite of the language contained in the statute, O'Connor claimed, "It contains no exception for when the procedure, in appropriate medical judgment, is necessary to preserve the health of the mother." What she meant was that if the doctor feels like the safest method to use in performing an abortion is partial birth abortion, then that should qualify as an exception to the law. Unfortunately, an exception that large would invalidate the law entirely. Any time that a doctor wanted to perform this procedure, all he needed to do was claim it was for the health of the mother.
The best hope we have to overcome that hurdle is a resignation from the High Court that would tip the balance in favor of the ban. It is likely that we will see at least one resignation from the Court this year, possibly before the end of the summer. That brings us to the second hurdle — judicial confirmations.
It has always been the job of the Senate to confirm judicial appointments made by the President. This is part of the checks and balances built into our system of government by the founding fathers. However, throughout the years the confirmation process has been treated as more of a courtesy than as an adversarial proceeding. The original intent was to allow the Senate to prevent unqualified or unscrupulous men from obtaining judicial power.
When George W. Bush started appointing highly qualified, conservative judges, liberals switched into high gear. Democrats in the Senate Judiciary Committee under the leadership of Senator Patrick Leahy stalled, blocked, and used every tactic at their disposal to prevent a confirmation vote from reaching the floor of the Senate for any conservative judge that came before them, regardless of qualifications.
With the shift in the balance of power brought by the 2002 mid-term election, judicial appointees thought they had finally received their "get out of jail free" card. Unfortunately, such hope was very short lived. The liberals knew their last bastion of power lay in the overwhelmingly liberal court system manned by activist judges. Liberal forces had no intention of giving up their primary stronghold without a fight. Enter the filibuster.
Never before in the history of the Senate had anyone ever used a filibuster to prevent the confirmation of a judicial appointee until Miguel Estrada. Estrada's crime was not a lack of qualification (he was given the highest rating possible by the American Bar Association) or his character. The danger he posed was that he was just too conservative.
In 1975, the rules regarding a filibuster were changed, making it unnecessary for the party that wanted to block a vote to be present around the clock. Since that time, a single Senator can stop a bill by threatening a filibuster.
It is, however, within the Senate Majority Leader's power to force the issue by ordering the Senate in session around the clock and using the sergeant-at-arms to round up absent Senators. When the filibuster was first threatened against Estrada, Bill Frist threw down the gauntlet saying that anyone wanting to filibuster to prevent the confirmation had better be willing to debate the nominee until he was allowed a vote.
Unfortunately for America, the Democrats called his bluff and proved that he did not have the backbone to make good on his threat. Once that happened, they knew they had a winning strategy to continue to shield the courts from conservative influence.
The opposition has proven they are willing to use any means necessary to win this fight. Conservatives have, in an effort to remain civil, given inch after inch, allowing them to take mile after mile. If the pro-abortion, anti-family forces are willing to fight this hard over nominees to the federal courts, how hard will they be willing to fight to protect a majority on the highest court of the land?
If we are to have any chance of protecting a ban on arguably the most extreme form of abortion, not to mention defending all of the other family issues that we all hold dear, we must be willing to fight at least as hard as our opposition.
Victory is still very much within our reach, but we must realize that our leadership is not going to do it for us. This is a war that will be won or lost in the trenches by the ordinary foot soldier. You and I must make our voices heard loudly and clearly in the Senate Chamber, or allow abortion in America to continue totally without restriction.
- Warren Kelley
Warren Kelley serves as President of the National Center for Freedom and Renewal.