Wednesday, April 25, 2007

Hadley Arkes on the good and the bad. [Jay]

Hadley Arkes in this piece at the National Review Online discusses both the limitations of Gonzales v. Carhart and the possible upside to the decision as well as any writer that I have read in the past few days.

I think the point is well taken that if this decision lives in a vacuum, and it is the only judicial victory for the pro-life position over the next few years then it is a hollow victory. The upside is that it opens a door of opportunity to move the argument to the next position. I imagine it similar to the island hopping campaign of WWII in the Pacific theater. Taking Japan all at once was not the plan. Win one island and move to the next, all the while moving closer to the Japanese mainland and securing better strategic positions.

We just won a single island. If this victory is all we get it is not much. But if we launch our attack on the next island this less significant island becomes the base for our operation. It does not have to stop abortion. It just has to give us a plot of land closer to the ultimate target. I particularly like this portion of Arkes summation on the possible upside:

In the most curious way, then, a decision so narrow, so begrudging and limited, may invite a series of measures simple and unthreatening, but the kinds of measures that gather force with each move. We need to remind ourselves that we have seen such things before. We may recall, in that vein, the Emancipation Proclamation. It was limited, as a war measure. For Lincoln did not have the authority to strip people of what was then their lawful property in slaves. The Proclamation freed only those slaves held in areas that were in rebellion against the government. It did not cover the slaves held in Delaware, Maryland, Kentucky, Missouri. And yet ... it was understood instantly and widely in the country that this measure had an “anti-slavery impulse.”

The decision on Wednesday, in Gonzales v. Carhart, was severely limited and diminished in its practical effects. But rightly or wrongly, there may be a sense that the decision opens the doors now; that it invites legislators and political men and women to deliver themselves from the reign of judges, and set their hands to this task once again.

In 1973, the Supreme Court of the United States of America arrogated the sole right to decide the national policy as it pertains to the issue of abortion. If this victory begins to chip away at that monopoly and offers opportunities for pro-life legislators to get active in a more meaningful way and engages all three branches of our government as well as the people that empower them, then it may be a great deal more than it appears at the moment. We can only keep working and pray.


  1. The PBA Opinion: Keeping it all inside.

    During the Carhart oral arguments, Justice Ginsburg observed that the PBA Act accomplishes nothing in terms of actually stopping abortion:

    "The only question you are raising is whether Congress can ban a certain method of performing an abortion. So anything about infanticide, babies, all that, is just beside the point because what this bans is a method of abortion. It doesn't preserve any fetus because you do it inside the womb instead of outside." (Gonzales v Carhart 05-380; p16)

    To paraphrase her - the Act bans a procedure, it doesn't matter where the fetus is killed, because it's supposed to die - by choice. Despite her attempts at skirting the obvious language, she can't escape the reality that's been unacknowledged for so long: that a human being is killed during abortions. Yet the method - the process itself, and the way we discuss it truly matters.

    Practically all surgical abortion procedures kill by dismemberment during the process of evacuation - partial birth abortion evacuated the skull prior to the "intact" extraction of the body. In effect, the brain was dismembered from the body as the method of killing. Through the PBA Act an indelible image has been drawn before the eyes of the nation - brutal dismemberment of a living being.

    This has radically changed the perception of abortion - what was seen as one complete process has now been divided into two, if not in actual practice, at least in public perceptions, and this opens possibilities for legislators.

    Kennedy's opinion, while still allowing for abortion, has clearly defined the killing floor - inside the woman's womb. The child can no longer protrude in "one piece" outside the womb for the abortionist's purposes. While death through dismemberment was often the rule rather than the exception when attempting an intact D&X, groundwork has been laid for genuinely discussing the psychological effects of killing the child beforehand, then dismembering a later-term fetus inside a woman's womb, with all the associated risks and consquences.

    The idea that abortion is a single smooth continuous process where the "pregnancy" is removed has now been broken. By focusing on the technical aspects of the procedure rather than abstract legalities, Congress has set a precedent for strong legislative discussions about the realities of what happens within a womans' womb, the medical and psychological effects of abortion and ultimately a woman's right to know what the medical profession is doing in there and to whom.

    The PBA Act has been educational to say the least, but there is a method to this process that Justice Ginsburg fails to grasp. With the ruling, it's clear - abortion methods can be banned, and those methods are the islands we need to target.

  2. Please review this link and let me know your thoughts;


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