- The Washington Times - Monday, January 17, 2000

Two of the nation's most contentious political issues may be resolved as early as July, but neither the public nor their elected representatives will have much to say about it. The U.S. Supreme Court has announced it will hear arguments regarding partial-birth abortion and the exclusion of homosexual troop leaders from the Boy Scouts. Coming as the decisions do in an election year, they will give voters of all persuasions reason to keep track of the presidential candidates who, through court appointments, provide the public some small influence over future judicial decisions.

Perhaps the most important of the cases involves partial-birth abortion, which the Associated Press has described in sterile terms as "partially extracting a fetus, legs first, through the birth canal, cutting the skull and draining its contents." The medical value of the procedure has been in doubt for years. Discussing partial-birth abortion in the context of a proposed federal ban on it, the American Medical Association has said it is "never the only appropriate procedure and has no history in peer reviewed medical literature or in accepted medical practice development."

Partly for that reason, some 30 states have banned partial-birth abortion only to find their wishes overturned by federal district and appeals courts which have ruled the laws violate a woman's constitutional right to an abortion. Last year the 8th U.S. Circuit Court of Appeals overturned bans in Nebraska, Iowa and Arkansas. At about the same time, however, another appeals court upheld bans in Wisconsin and Illinois. The 4th U.S. Circuit Court of Appeals, meanwhile, has allowed a partial-birth ban in Virginia to stand.

In their appeal, Nebraska officials actually asked the high court to reconsider the question of whether abortion is really a constitutional "right," one that the justices famously "discovered" in Roe v. Wade. The court rejected the request and instead will limit arguments to whether the partial-birth ban applies an "undue burden" on the woman and effectively violates her right to an abortion. Still, the lasting moral and medical fallout from the case make it a critical one.

The case involving the Boy Scouts is also important, touching as it does on First Amendment rights of association and speech. Last year, the New Jersey Supreme Court ruled that the organization violated a New Jersey law banning discrimination in public accommodations. The case arose after the Boy Scouts ousted an assistant troop leader named James Dale after discovering that he was homosexual.

"Scouting adheres to a moral belief … that homosexual conduct is not moral," a lawyer for the Scouts said last week. Hence a person who is openly homosexual would not be a proper role model for the Scouts. Naturally, Mr. Dale's lawyers disagree, saying his sexual practices have no bearing either on his leadership or on the Scouts.

But one need not be a Boy Scout to understand that the stakes here go far beyond the organization or its members. If the Scouts cannot set the moral or other codes by which it defines membership and chooses it leaders, then what other organizations will find themselves unable to do so? Are there any bounds to the conduct of members the Scouts must accept? Insofar as some distant court or legislature sets membership criteria and morals, the Scouts and other groups lose the right to associate with those they choose.

If the court rules against the Scouts in their membership fight and against the states in their efforts to limit partial-birth abortion, expect both cases to become political issues in the presidential campaigns. And rightly so.

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