Rorate Caeli

Deo gratias!

When, after even Portugal allowed the killing of babies in their mothers' wombs, the abortionist wave seemed unstoppable around the world, the Supreme Court of the United States surprisingly handed down a tiny and convoluted, but nonetheless historic, victory for life.

Dear American readers, the fight is on for a truly pro-life Supreme Court to be chosen (by the people) by way of the Presidential elections of 2008, a Court in which the concurring words of Justice Thomas ["I write separately to reiterate my view that the Court's abortion jurisprudence, including Casey and Roe v. Wade, 410 U. S. 113 (1973), has no basis in the Constitution."] may one day be the opinion of a solid majority.


  1. Indeed; Mr. Justice Thomas continues to represent the stream of authentic jurisprudence in the United States. It is interesting to note that his consistency also requires him to point out that there is another technical ground, completely unrelated to abortion, on which the Act could have been attacked. This absolute consistency is one of the hallmarks of his judicial integrity, leading as it sometimes does, to judgments that are personally antipathetic to him.

    It is also interesting to note that the new Catholic justices voted as expected and hoped, but have kept their powder dry on the wider abortion issue, by not joining the Thomas/Scalia dissent. This is probably strategically wise, because it makes that much harder for the forces of death to whip up hysteria. We may still hope for great things from them in the future.

  2. Yes.....

    In view of the legislation that was sustained in the case, MANY more avenues are now open for systematic attack.

  3. In my post above, "dissent" should, of course, read "concurrence." It shows how things have changed!

  4. Anonymous12:27 AM

    Please don't rejoice, as babies will not be saved. Note the EXCEPTION provision. Doctors will use this to proceed with the killing of the innocent unborn. This decision will only embolded those politicians who like to claim Pro-Life status while holding that this means that the exceptions of the life of the mother, rape and incest are justifiable reasons for permitting Abortion regardless of whether it is an early term or late term abortion.

  5. Tom:

    as a congressional staffer who spent the better part of eight years working to see this enacted, let me say, this is the best that could be done. Yes. There is an exception clause, and it is life of the mother. Further to that, it then describes the factors that could influence this. The important distinction is that it refers to "physical" disorder, illness, etc.

    This is a fundamentally different definition of health as defined under DOE v BOLTON. In fact, in many ways, this decision overrules parts of DOE. Now we can make extended attacks on abortion.

    This opens the door. Is it perfect? No.

    Is there an exception? Yes. But it is an exception that countless doctors who testified in front of the House claimed could never be actually met, because it didn't exist.

    Will this type of abortion continue? Probably, until we can test enforcement.

    This is a first step, a small one, but a first step.

  6. Oh, and I should add, in the interest of full disclosure, the exception Tom referred to is:

    "This subsection does not apply
    to a partial-birth abortion that is necessary to save the life of
    a mother whose life is endangered by a physical disorder, physical
    illness, or physical injury, including a life-endangering physical condition caused by or arising from the pregnancy itself."

  7. Yes, today's ruling reminds me of an article by Hadley Arkes published last year in First Things:

    "Still, if Roberts and Alito help simply to overturn that prior decision on partial-birth abortion, my own judgment is that the regime of Roe will have come to its end, even if Roe itself is not explicitly overruled. What the Court would be saying in effect is, 'We are now in business to consider seriously, and to sustain, many plausible measures that impose real restrictions on abortion.'

    "That would invite a flood of measures enacted by the states. They might be restrictions on abortion after the point of viability, for instance, or even earlier, with the first evidence of a beating heart. Or requirements that abortionists use a method more likely to yield the child alive. Or provisions that ban abortions on a child likely to be afflicted with disabilities, such as Down syndrome.

    "Each restriction would command the support of about 70 or 80 percent of the country, including many people who describe themselves as pro-choice. And step by step, the public would get used to these cardinal notions: that the freedom to order abortions, like any other kind of freedom, may be subject to plausible restrictions; that it is legitimate for legislatures to enact those restrictions; and that it is, in fact, possible for ordinary folk, with ordinary language, to deliberate about the grounds on which abortions could be said to be justified or unjustified. This seems to me the path far more likely to be taken by justices with the judicial temperament of John Roberts and Samuel Alito."

    Too optimistic, perhaps?... But still, it is something...

  8. I think that's very plausible. This decision will facilitate an expansion of the incremental approach, which has already begin to save lives by making abortions practically very difficult to get in many places. It does indeed signal that the Court will seriously entertain further restrictions.

    However, it's not simply the impact of Roberts and Alito that is important here. This is a Kennedy opinion. Although he is bizarrely committed to abortion remaining legal in principle, he has no love for it. His cooperation is vital, at least for the time being, in restricting the scope of legal abortion, and this decision shows that he is willing to work with today's majority to do so for the time being.

  9. Anonymous3:27 AM

    The most interesting part of this decision is the extension inclusion of testimony and other graphic descriptions of differnt abortion procedures. All subsequent anti-abortion briefs will be able to cite this language with powerful effect.

    I believe that we live in a remakably shallow age where voters and politicians are much more swayed by perception and feeling than reason and morality. Whichever side of a debate is able to appear caring and characteture the other side as cruel or harsh will win. (Global warming= stranding polar bears)

    This decision is crucial if I am right. The pro-choice zealots won the early PR battles by making abortion an issue involving a coercive state and oppressive majority against poor young helpless women. The pro-life side has taken back much of that ground not by their timid legal strategies, but simply due to the increasing prevalence of ultra-sound imaging technology, which is waking up everyone to the reality of a baby in the womb. If the debate shifts from mother v. state, to mother v. baby, the baby will gain the upper hand for obvious reasons. And when people find out exactly what people are doing to babies, they will react.

    This is by no means saying that the jurisprudence will follow the shift in sentiment immediately. But it might make getting pro-life judges appointed easier in the long term.

    Otherwise, the decision is a lesson in political relativism, with Justice Kennedy passively reflecting upon, and then failing to answer why crusching a babies skull in the birth canal is any more barbaric then dismembering it in the womb, and then cooly dismissing his ability to decide such moral issues.

  10. Anonymous2:36 PM

    Please remember Mexico in your prayers. I heard a radio commentary recently that it is likely a bill permitting wholesale abortion will be passed even though 80% of the population opposes it. The vote is coming up on April 24.

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  12. Here is what those calling this a victory do not understand, this is not a groundwork for overturning abortion rights. The majority opinion occurs within the framework of the Casey decision, and is seen as a legitimate application of it. Pro-lifers and babies alike have gained zero ground, IMHO. For more you can read my overall opinion on the subject "Is the partial birth abortion ban a victory?" (That is, if New Catholic will permit me a shameless plug) :)

  13. And how could it be any different, Athanasius? Kennedy wrote for the Court in Casey...

    The act was declared valid by the Court. The other option was for the Court to strike down the law as unconstitutional. So it seems that what happened was a little better than the alternative. That is it: nobody is truly happy with the decision.