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June 5, 2004 The abortion issue is the Energizer Bunny of American politics: it just keeps going and going. The most recent news item, of course, is the ban on partial birth – or late term – abortions. With the stroke of a pen, District Judge Phyllis Hamilton showed that she knew better than the rest of the country and stayed the legislative will of a clear majority. Given the gravity of the issue at hand, the curtness of her decision is nothing short of breathtaking. Hamilton, a Clinton appointee, decided last week that the ban posed an “undue burden” – it’s always an “undue burden” - on a woman’s right to choose. In a rather callous dose of adding insult to injury, she also opined that it was “irrelevant” if a fetus felt pain during the procedure. Abortion advocates – there can be no other description at this point – are naturally delighted by Hamilton’s judicial fiat. In their minds, it represents a victory over idealogues who would slowly intrude on the inviolable, if loosely defined, right to “reproductive freedom.” Their logic continues to escape me. For starters, it’s shocking how many of the advocates, especially those from younger generations, have never really bothered to read or understand the Holy Grail of their cause: Roe v Wade. To summarize, the gist of that 1973 decision is that although the majority admitted that there is no explicit right to privacy in the Constitution, the same court had divined an implied right to the same (mainly in Griswold v Connecticut). In defining the scope of its newly discovered toy, the court felt that “privacy” was broad enough to cover abortion. They tied up the loose ends by invoking the Due Process clause of the 14th Amendment, which overrode state statues restricting the procedure. And that’s about it. ”What’s the big deal?” say the advocates - this sort of freewheeling interpretation goes on all the time. But the most devastating critique of the Roe decision came in William Rehnquist’s dissent, where he pointed out that when the 14th Amendment was ratified in 1868 the majority of states and territories at the time had some sort of statutory restrictions on abortion. So, nearly 100 years after the fact, a handful of judges divined a sweeping right to abortion using a broadly worded clause when said use was clearly not on the mind of the people who actually wrote and ratified the amendment in question. Undaunted by the shaky constitutional footing of their victory, the advocates press on. Judges gaveth and judges can taketh away, hence the increasingly bitter fight over judicial nominations like Miguel Estrada and Priscilla Owen. To strengthen their position, abortion advocates are fond of using deliberately sterile terminology: “reproductive freedom” and “choice,” with healthy doses of “it’s MY body!” thrown in for good measure, are the mantras of the cause. However, we are not talking about cutting one’s hair short, getting a tattoo, or even using contraception. At the bare minimum, depending on your religious or philosophical outlook, abortion involves at least the potential for a human life. How people like Hamilton can so breezily dismiss, in ignoring the sentient capabilities of a fetus, that aspect of the argument strikes me inhumanly cold. It also betrays an extreme in ideology that the advocates often use to demonize people on the other side - like Attorney General John Ashcroft. To cover for this brutal aspect of their argument, the advocates like to show that they care by proclaiming their personal discomfort with the very procedure that they so vigorously defend. (“Safe, legal, and rare” is the standard catchphrase to clear one’s conscience and still be able to march next to Whoopi.) But why bother to hedge yourself on the issue? If the battle is all about abortion being safe and legal, who cares whether it’s rare or not? The answer is simple, of course: it’s not rare at all. Perhaps we should start counting, a la McDonald’s. 40 million served. ------------ About Matthew Bastian: Recovering socialst, part-time drummer, long-suffering Brewers fan, and all-around beach hound, Mr. Bastian lives in central New Jersey. Email Matthew Bastian: mbastian19@hotmail.com ------------ |
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