Friday, May 11, 2007

More Strawman Tactics [SK]

I got this response from a reader not happy with my reply to Enyart:

Why don't most of these ministries link to the [SCOTUS ruling on PBA] when they are glorifying it? CRTL does in their summary so you can read it for yourself. It has been 40 years of child killing in Colorado, I ask you what is wrong with evaluating strategy?
The problem isn't with evaluating strategy. Everyone agrees we need to do that from time to time. The problem is that you, Enyart, and James C. have yet to state what your exact strategy is, why you think you can reasonably implement it at this time, and why those of us who support an incremental approach are to blame for millions of deaths. You make lots of strong claims and support none of them. That's the problem.

Moreover, we are not "glorifying" in the SCOTUS ruling (another strawman on your part). We are making sober judgments about what can be done in light of it. If Enyart's point had been more modest--"Hey folks, not everything is rosy with SCOTUS and PBA and we've got lots of work to do"--I'd be the first to agree. No one that I know in the pro-life movement thinks we've won a major victory. And yes, we all recognize a majority of judges went to great rhetorical lengths to insist that abortion rights remain secure.

But it doesn't follow from this nothing good can come from the decision. True, we shouldn't glorify the SCOTUS ruling; instead, we should make sober judgments about what can be done in light of it. For starters, we must distinguish between the language of the judges (i.e., their legal blatherings) and the actual premises they put in place with their ruling, premises which can be a help to us in the future. For example, the Court ruled the Federal PBA Act 1) is not void for vagueness, 2) does not impose an undue burden, 3) does not require a "health' exception, and 4)is not facially invalid--meaning the Court is no longer inclined to have special ad-hoc rules favoring those who challenge abortion regulations.

As I said in my initial reply to Enyart, point #4 is most important in my view. Hadley Arkes explains its significance:

In a piece last January in First Things (“The Kennedy Court”) I anticipated that Kennedy would try to resolve the case in the most limited way by simply rejecting the decisions in the lower courts to strike down a law on abortion in a “facial challenge.” In most cases, a facial challenge will be accepted only when there appear to be no conceivable circumstances in which the law could be constitutional. With laws on abortion, however, the situation is inverted: The federal judges have been willing to enjoin the enforcement of these laws in facial challenges if there is any conceivable circumstance in which the law might be unconstitutional. Kennedy has now made it clear that this inversion of the law has been ended, and that is no small point: It means that laws on abortion will be allowed to work, to have their effect; that they will not be struck down flippantly on the basis of airy speculations offered by people who object to having abortions restricted. The laws would not be challenged then unless there is a concrete case of someone actually denied an abortion that could clearly be tested.
As Arkes points out in another piece, big results often follow from small legal victories.

Finally, the reader says we need to re-evaluate strategy--by which I think (based on previous emails) she means incremental strategy. Fair enough. But before you blame that strategy for millions of deaths, you better step up and refute the mounting evidence suggesting that very strategy is saving lives, not losing them. For a summary of that evidence, go here and here.

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