I spent about six hours yesterday editing an article for our upcoming edition of Law Review which discusses Carhart II (2006 Partial Birth Abortion case decided by the Supreme Court) (opinion here). The author never really "praises" Carhart II, but he does explain that it fits with precedent and adds something new and important to abortion jurisprudence.
I disagree strongly with many of the most important aspects of the paper, but that's not what this post is about. During my editing, I came across the Colorado Right to Life's open letter to Dr. Dobson of Focus on the Family which lambasts Carhart II and severely criticizes Dobson for praising the opinion. I think a friend showed me this letter when it was fresh on the net, shortly after Carhart II came out. But I did not read it till today, and I recommend it for your reading, thought, and discussion. (open letter here).
The jist of the letter is this: First, the alleged "ban" really does nothing to save babies by banning abortions, but merely puts a stop to the most publically disagreeable type of abortion. To provide an analogy, I suppose this would be like saying you can't put your feet on the table with a loud thump, but any other way you want to get your foot on the table is fine, even if it involves dashing the main dish onto the grimy floor. Oh, and by the way, it's not that the thump will cause any real trouble, it's just that some of the people at the table are annoyed by the noise it makes, and would prefer not to have to hear it. You will agree--not much of a ban.
Second, the justices uphold the ban, and explain with painstaking detail all the different methods that doctors can use to kill babies just as late into pregnancies.
Third, if the ban doesn't save babies, and if the opinion explains how doctors can get around the ban almost entirely, then the ban and the opinion saves not a single child. Thus, it is dishonest, unprincipled, and unChristian for Dobson, ACLJ, and many other "pro-life" groups to praise the opinion.
Finally, to praise an opinion like this as legitimate because of the need to stick with established process and precedent is to be a legal positivist which is nothing more than legal moral relatavism. To support legal moral relativism seems a bit hypocritica for Focus on the Family to praise when groups like this are supposed to be fighting tooth and nail against societal moral relativism.
Anyway, it's a good read, and I recommend it to anyone who stumbles across my blog.
Saturday, March 22, 2008
Subscribe to:
Post Comments (Atom)
11 comments:
I severely doubt that Focus on the family believes in legal positivism or keeping with precedent on this issue. I am sure they would be fine if Roe were overturned for example. It is more the justices that have to weigh stare decisis which is basically just the general rule that keeping with precedent provides stability in the law and overturning provides instability.
Caleb, the reason you can severely doubt that Focus on the Family believes in legal positivism is because you haven't read our open letter that Jaired linked to. When Dr. Dobson defends rulings that keep legal partial-birth abortion because the federal judge was following precedent, he is a legal positivst and moral relativist. That would be more clear to you if the victim of the ruling was in Germany in the 40s instead of in America today, where you and all of us have been desensitized by the mass mass murder of the unborn.
bob, i did read the open letter and sadly enough its references to "proof" that Dr Dobson is a legal positivist and a moral relativist are thin indeed. As far as him saying they followed precedent I am sure that he does not really know what he is talking about (legally speaking) and would give him the benefit of the doubt before labeling him with such a wide ranging label as legal positivist and moral relativist. Again, if he really believed that it was a good thing that they were "following precedent" then he would not like Roe to be overturned correct? But, of course, FOTF and their constituents would have absolutely no problem at all if Roe were overturned, the same could be said of his legal positivism stance. The way you are stating legal positivism is simply relating it to moral realativism which while similar they are not the same. Dobson does not believe that whatever rules are passed are the rules that we should live by. He believes in the divine inspiration of the Bible and higher laws of God as what we should model our laws after so he believes there is something that should rule us outside of our own rule making. So he is not a positivist. Finally, to call him a moral relativist is simply put, absurd. Dobson is much closer to a Bible thumper (a derogative term in my mind) than a moral relativist. He believes in the exclusive claims of Christ as the sole way of salvation. Please, please, stop insulting him with such wide ranging labels simply because you disagree with him on one issue. That is just not right.
Having neither re-read the open letter nor carefully read the Carhart II majority opinion and its attendant concurrences and dissents, I am not in a position to say too much about caleb and bob's disagreement.
Please, therefore, correct me if my impressions are off based, but I do not believe this statement:
When Dr. Dobson defends rulings that keep legal partial-birth abortion because the federal judge was following precedent, he is a legal positivst and moral relativist.
comports with an accurate view of what happened or with a correct view of the judiciary's role.
To my knowledge, neither the open letter or anybody else, claims that Dobson defends such cases as Carhart I or Planned Parenthood v. Casey. Rather, he praises Carthart II. Currently, virtually all of my friends have come out against the open letter criticizing this praise. I have yet to voice an opinion as I would like to think more deeply about the practical effects of Carthart II and what the justices really said.
Nevertheless, Mr. Enyart's statement above implies that the Supreme Court should have, in Carhart II, banned all partial birth abortion. This may indicate a faulty view fo what the Court did in Carhart II as well as what the Court's role is.
First, the Court did not "ban" D&X abortions. Rather, it upheld a federal ban on D&X abortions. The federal ban was an act of legislation by Congress. The Court should NOT be legislating anything, and this issue, I am fairly confident, does not implicate the Nuremberg trial argument (an argument to which I am very sensitive).
Second, Mr. Enyart seems to take the mistaken view that the Court banned D&X abortions and run with it, implying that the Court should have gone further and banned all partial birth abortions. In other words, what I quoted above seems to imply that the responsibility of the Court is to legislate.
Now, if this were true, then I would agree: the Court did not show much of a pro-life bent when it's ban was so pitifully small. But as I have pointed out, the Court has no authority to ban anything.
Fortunately, I did not see the open letter making a similar claim. (As an aside, I think that my friend Mr. Casey did read the open letter as stating this, so I guess I should reread the letter and re-evaluate). Rather, I saw the open letter as criticizing the Court for relying so heavily on precedent to say: while it is true that a ban on D&X looks pretty close to being unconstitutional, we can finangle precedents to allow for this ban to stand.
I wonder, would the open letter have ever been written had Dr. Dobson praised the following Supreme Court opinion:
(alternate Carhart II opinion)
The taking of innocent human life is murder and is therefore not protected by the Constitution in the form of a right of women to "choose." Thus, the statute at issue cannot possibly infringe upon such an alleged right of women and is therefore constitutional. We admit that the issue of overturning Roe v. Wade is not before us, and therefore we cannot overturn it at this time. But rest assured, if such a case does come our way, we would love to put the supposed right to abortions on the dung heap of jurisprudential history where it belongs.
Hey Jaired,
That is a pretty far-fetched Supreme Court opinion (alternate Carhart II opinion)! What Supreme Court were you thinking it would come from? What year - what planet? If we could just get one more conservative, God-fearing jurist on the current Supreme Court that believes that all preborn babies have a God given right to life (inalienable), then we would be up to ONE and would only need FOUR more to get a majority to issue that impossible ruling you dreamed up. You should really read Carhart II. It is only a few pages and will open your eyes to the truth.
-shawn from plymouth
Far fetched puts it mildly, true.
I will read CII. Until then . . .
The partial birth ban as passed by the congress was a meaningless law because it prevented zero abortions. What really makes the Supreme Court decision evil is the Court goes out of it's way to spell out to abortionists how they can get around the law and still kill the baby. The law is not praise worthy, but the court decision is evil.
To the last two commenters (shawn and darrell):
What would you have the court do? Sure, Jaired's hypothetical Carhart II would be great, but do you really believe it is possible to swallow the whole pro-life pie in a single bite? Jurisprudence is the way it is because for many decades the anti-intellectualism of the Pietist movement and the anti-government involvement of the Fundamentalist movement reinforced the hell-borne fallacy of a sacred/secular distinction, one which allowed our governmental institutions to decay under legal realism and legal positivism sans any thoughtful, timely Christian participation. Thus, our institutions went to hell in a handbasket through our own inaction.
Answer the following question: Does Carhart II limit in any manner the available universe of abortion procedures? Yes. Did it define a line--the navel--as being sacrosanct and a guide for further procedures? It could be read that way. But again, the universe is now limited, if even a little.
As such, it is far better than a ruling in the opposite direction. It showed that despite abortion law being a sacred judicial cow created by Supreme Court fiat, it has a chance to become a purely political decision which can be legislatively curbed. It is not invulnerable to attack. Like Rocky found out in Rocky IV, Ivan Drago does bleed. You two, along with CRTL, seem to expect way too much too soon. We lost these rights over about 70+ years of bad jurisprudence spawned from a few hundred years of existential atheist philosophy. Be a little realistic in how long it will take to get them back.
In addition, this expectation of immediate repeal of all abortion law would make the court just as active to inculcate our beliefs, something we hate when applied to beliefs antithetical to ours. The court answered a very narrow question here, and while I myself don't think abortion is something the federal government is constitutionally permitted to regulate, Carhart II stands for much more symbolically about the power of Congress to even touch this area of law with legislation. Perhaps a secret victory is the vitriolic dissent from Ginsburg, et. al., admitting the barbarity of both D&C and D&X procedures. This will, I believe, come back to bite her in the heel.
My suggestion: be patient and work hard and pray hard. Don't belittle the small victories, and look for a positive outcome. Don't spin things to our disadvantage; don't be deluded into thinking it is more than it says (which I believe is your point), but at the same time be realistic--this will take time, and hopeful--we are making progress.
Stephen, for the first time the Supreme Court (via Carhart II) codified into law how to legally kill someone (a baby ripped from his mother's womb by his legs)! That is so abhorrent, nobody should celebrate it! The ruling does not even stop the killing at the navel because it goes on to say that if the abortionist intended to stop at the navel but due to overdilation the baby comes out farther, he can still kill the baby! There goes YOUR little victory Stephen! (And another baby just died while you stand by waving your flag and encouraging all to put on our Positive-Thinking-Caps) The ruling even encouraged the abortionist to use other less shocking methods to kill the baby and then deliver it dead.
Why wouldn't the federal government be constitutionally permitted to regulate abortion? Have you read the 5th amendment?
"nor be deprived of life, liberty, or property, without due process of law;"
or the 14th amendment? "nor shall any state deprive any person of life, liberty, or property, without due process of law;" All the babies are innocent - their only crime is BEING UNLOVED!
-shawn from plymouth
Shawn from Plymouth,
First, to answer your comments:
Why shouldn't the fed. gov't be allowed to regulate abortion?
1) The Constitution does not mention abortion. Health, safety, and morality is a state police power and not a federal one.
2) Due process happened. There was a legislative process and a judicial process.
3) I agree that those amendments you reference cover protecting this life, but the question coming before the court did not regard this at all.
Second, here are my comments:
I can't find where in the Carhart II opinion the judges crafted a medical procedure. Why? Because it's not there. The court was describing the procedure and the law, and then deciding whether or not Congress had the right to make such a restriction. This is what judges do. You apparently want judges to act like quasi-legislative philosopher kings giving vast ideas. Judicial integrity does not make judges super-parents; quite the contrary is true--they should answer the narrow question before them and avoid the tempting apple of social engineering.
This is the central question of my post which you have left unanswered. Please respond to this question: Would you expect the court to, in this case, ignore the question before it and make a blanket ruling that abortion is illegal?
If your answer is yes, then consider and respond to this interchange presented in "A Man For All Seasons" about Sir Thomas More, as well as my updated dialogue. If not, then what is your problem (answering a narrow legal question) with a court doing its job (I'm not defending abortion) in a hard area of law, rather than it answering the question you want to ask it (a broad question not before the court?
Dialogue:
William Roper: So, now you give the Devil the benefit of law!
Sir Thomas More: Yes! What would you do? Cut a great road through the law to get after the Devil?
William Roper: Yes, I'd cut down every law in England to do that!
Sir Thomas More: Oh? And when the last law was down, and the Devil turned 'round on you, where would you hide, Roper, the laws all being flat? This country is planted thick with laws, from coast to coast, Man's laws, not God's! And if you cut them down, and you're just the man to do it, do you really think you could stand upright in the winds that would blow then? Yes, I'd give the Devil benefit of law, for my own safety's sake!
Carhart II version (updated)
Shawn: So, now you'd rule on the actual question in a case rather than make a huge sweeping philosophical precedent against abortion!
Stephen: Yes! What would you do? Be the most activist judge ever to get after abortion?
Shawn: Yes, I'd completely trash the nature of a limited judiciary to do that!
Stephen: Oh? And when every judge legislated from the bench and then one judge decided to go after pro-lifers, where would you hide, all the judges ignoring precedent? This country depends on the rule of law, from coast to coast, human precedent, not divine precedent, based on narrow legal questions. If you begin doing that, Shawn, and from your posts you’re just the person to advocate for judges to do it, do you really think you could stand upright in the winds that would blow then? Yes, I’d rule narrowly in an abortion case, for my own safety’s sake!
Psalm 15:1,4
Who may stand on God's holy hill? . . . He who keeps his oath, even when it hurts.
As it appears there are no further contenders, I offer a self-proclamation (in the spirit of Highlander) that I am the king of the hill. QED. There can be only one . . . ;)
Post a Comment