April 27, 2007
by Chris Thomas
It has become abundantly clear in the last week that in order to hold ideological ground with the Republican Party one must have slept through high school government. While the radical religious crazies who've hijacked the "party of small government" were cheering the Supreme Court for upholding a federal law which bans a functionally non-existent procedure, the political operatives who actually did the homework have moved to shut down the entire abortion fiasco in the United States.
The Court's 5-4 decision in Gonzales v. Carhart will very likely not prevent a single abortion. What it does do, however, is demonstrate a clear and unambiguous consensus from the Court that the Congress does have the authority and the power to legislate, based entirely upon moral grounds, the legality of a medical procedure. The precedent set in Gonzales v. Carhart, in conjunction with that set McCulloch v Maryland, fundamentally alters the landscape of the abortion debate and, with Democrats in control of the Congress and (potentially) the Presidency in 2008, the reaction from the American Right should be one of overwhelming terror, not jubilation.
Abortion is a strange topic in American Politics and especially so when it hits the national stage. Traditionally "state's rights" and "small government" conservatives suddenly become "big government" legislators of morality when the abortion issue crops up, preferring not to trust the states with the delicate issue. Despite the absence of any Constitutional evidence of Congressional authority to regulate medical procedures, the typical cries of "Judicial Activism" are curiously absent when the Court hands down a decision that flies in the face of Roe v Wade.
Yet, despite Justice Kennedy's misogynist language, this decision is not just about a blow against Roe.
Traditionally the issue of abortion has been a strong one for the Republican Party. Republicans unite fairly well in opposition to abortion while Democrats remain at least somewhat divided as to the particular details of how abortion regulations should be phrased and implemented. The decision in Gonzales v Carhart threatens that balance as it demonstrates a potential shift on the Court. The disparate elements of the Pro-Choice movement are now faced with a Court that poses, for the first time in years, a substantive and real threat to abortion rights in the United States.
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Moreover, in the light of Kennedy's decision, the legal framework now exists for the Democratic Party to do something about it.
The core of Kennedy's decision is that the Congress has the power to legislate the legality of abortion at a sweeping and national level irrespective of a lack of scientific consensus on the "person-hood" of the fetus. In the light of existing abortion legislation, this decision translates into a decision upholding a ban on partial birth abortions and thus American Social Conservatives celebrate; but the pendulum of American politics is swinging.
The smart money is on a win for the Democrats in 2008. Vegas odds place Hillary at 3:1 with her closest Republican rival at a distant 10:1. Republicans have far more Senate seats up for grabs in 2008 then their counterparts on the left side of the aisle and there is little reason to expect that the House will change hands. The political reality is that come January of 2008 the Democratic Party will very probably find itself in a position to implement sweeping changes in public policy. Abortion is likely to be near the top of the Congressional and Executive agendas.
If that is the case then Gonzales v Carhart will be the tip of the spear. Kennedy's decision gives the Congress and President unambiguous authority to guarantee access to safe and legal abortions in every state irrespective of existing local and state regulations. The supremacy clause as interpreted in McCulloch v Maryland will serve to prevent even states with strong Republican majorities (like Utah and Nebraska) from restricting access to abortion. Turned on its head by a Democratic Congress and Executive, Gonzales v Carhart has the potential to serve, not as blow against Roe, but the legal justification for a sweeping and national ruling upholding it.
Indeed the Congress is already circulating early drafts of such legislation. Though the present Congress has little hope of passing such a bill with a religious fundamentalist in the White House the introduction of the Freedom of Choice Act communicates a clear and unambiguous message to the Republican Party should anyone choose to listen. With the Court unwilling to make a determination as to the Constitutionality of the abortion issue, the Democrats are more than happy to put it to a vote. Fifty-five percent of Americans believe that abortion should be legal in most or all cases. In 2008, that majority opinion will very likely be translated into law and Gonzales v Carhart will make it possible.
Read more on this issue in Federalizing Social Policy - by Ron Paul.
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Chris Thomas [send him email] is a graduate of the University of Virginia and writes a column for the online social news site Newsvine. He lives in Christiansburg Virginia with his wife Courtney and two cats of dubious loyalty.
