In the Legal History Colloquium I frequent, as is my wont (and as I am graded for), we recently read a work in progress over the reception of Swann v. Charlotte (the decision which required school busing in certain circumstances). Aside from the unique pleasure of hearing Gordon Wood calling any attempt to integrate real history into the law "a fool's errand," it was a fascinating example of ridiculously partisan history, whose real purpose was to bash what happened in Atlanta to preclude a comprehensive busing system.
Irrespective of one's political belief, I don't understand why people insist on writing political hatchet pieces in the guise of scholarly work, especially when, in the case of the academy, they are mostly preaching to the choir.
I just wanted to encourage everyone to visit Dani's blog. She was the first to link to me, and hence, she rocks.
Not to imply she didn't rock beforehand. Now I just have to figure out how to set up the links on the lefthand side.
In Roe V. Wade, the court noted that "If the State is interested in protecting fetal life after viability, it may go so far as to proscribe abortion during that period, except when it is necessary to preserve the life or health of the mother." Roe v. Wade 410 U.S. 113, 163-164 (1973). Thus, the contours of a constitutionally acceptable Partial-Birth abortion ban seem pretty clear.
Why, then, did congress pass a bill which did not include a provision for the life of the mother? The only difference between this bill and a Nebraska bill the court already struck down is that this one says, at great length, that there is in fact no need for a health provision, for this procedure is never needed to protect health. Stenberg v. Carhart 530 U.S. 914 (U.S.,2000).
Congress’ contention that this procedure is never needed to protect health seems unlikely to pass muster, as if there was truly no health purpose to the procedure, then there would be no concern about including such provision, which could never be used, and would protect the act from being overturned. For that matter, why have a provision for the life of the mother? Surely protecting life is the highest form of protecting health. There is no reason concerns which lead to worrying about saving life should not wash over to maintaining health in less extreme cases. If the Supreme Court held that a life provision is required on a partial-birth abortion ban, then so too is a health provision.
Given this, it seems hard to think that this bill is meant to do anything but fail in the Supreme Court. But then why expend all the ink in the bill text explaining why it shouldn't?
This all brings us back, of course, to The Onion, which, when in the "What do you think" section a party was asked what he thought of this act, responded that he was happy about it, since he had bought "back alley and wire coat hanger futures."
I'd love to hear thoughts. I apoligize for the overly legal nature of this post - not everything will be this Gdorb.
Now that's an odd mix of exalting and bloggy, eh? More to come.