If federal courts continue to strike down partial-birth abortion laws throughout the country, "[w]e are back to the familiar situation Roe created, in which raw judicial power blocks the possibility of democratic compromise," National Review's Ramesh Ponnuru argues in a Washington Times op-ed.
Ponnuru attempts to map out a legal strategy for establishing an effective ban on the horrendous procedure. Stating, "[E]ventually the ban will become law," Ponnuru asks, "But what comes next? If the fate of state bans is any guide, federal courts will probably strike it down." Because the "problem is legal rather than conceptual," he concedes that current state "laws can, with effort and strain, be construed as prohibiting more than just partial-birth abortions; and to prohibit too many abortions places an 'undue burden' on the supposed right to an abortion, which is the test the Supreme Court established in its 1992 decision in Casey v. Planned Parenthood."
Ponnuru argues the ruling in that case was intended "to give states more latitude to restrict abortion." He states, however, "if partial-birth abortion cannot be banned, this promise was false."
Ponnuru argues that unborn children should be protected under the Fourteenth Amendment since it asserts that "no state may 'deny to any person within its jurisdiction the equal protection of the laws.'" Correctly assuming that a unborn child is a person, he says, "Not providing some persons legal protection from homicide would seem to qualify." Ponnuru asserts that given this definition, "[t]he ban on partial-birth abortion ... can be justified under a defensible interpretation of the Fourteenth Amendment."
However, the courts have not agreed with this interpretation. Further bemoaning the extensive reach of "raw judicial power," Ponnuru asks, "Does Congress have the power to act according to its own understanding of the Fourteenth Amendment? The answer from the Supreme Court seems to be no."
Ponnuru realizes he has come full circle, and concludes: "So anti-abortionists are well and truly trapped. Every way they turn, the courts have blocked the doors. ... Unless Congress and the people are simply to surrender to the imperial judiciary, either the Supreme Court must be prevailed upon to change its views -- or its power must be directly challenged" (Ponnuru, Washington Times, 8/14).