- The Washington Times - Thursday, July 13, 2000

The Supreme Court decision striking down Nebraska's partial-birth abortion law fails to recognize that states have a legitimate constitutional interest in enacting laws that draw a bright line between abortion and infanticide. Even more disturbing than the Supreme Court's partial-birth abortion decision itself is its lack of candor with the American people.As an attorney who has been in the trenches of the partial-birth abortion legal battle from its inception, I must set the record straight for those well-intentioned state legislators who seek to draft new partial-birth abortion laws designed to survive Supreme Court scrutiny. Here it is: At least until the composition of the Court changes, any redrafted law would be futile and meaningless at best, distracting and destructive at worst.Like every one of the 30 partial-birth abortion bans nationwide, the Nebraska law had an exception for the woman's life. However, the court struck down the Nebraska law because it did not have an exception for the woman's "health." In her concurring opinion that provided the necessary fifth vote, Justice Sandra Day O'Connor stated that a ban "that only proscribed the D&X; method of abortion and that included an exception to preserve the life and health of the mother would be constitutional in my view."

These words seem like a reasonable invitation for the states to give it another try. In reality, this is an invitation for the states to enact a hollow partial-birth abortion ban in which the exception would swallow the rule. That's because "health" in the abortion context is simply a code word for abortion-on-demand through all nine months of pregnancy, and now even through the process of birth itself.

In common parlance, "health" usually means physical well-being. Yet the Supreme Court, for 27 years, has defined health in the abortion context as "all factors physical, emotional, psychological, familial, and the woman's age relevant to the well-being of the patient. All these factors may relate to health." The court articulated this boundless definition of "health" in Doe vs. Bolton, a companion case issued on the same day as Roe vs. Wade. Thus, requiring a Doe health exception means that a doctor can perform a partial-birth abortion on a healthy baby of a healthy mother who may find the late-term pregnancy just too emotionally stressful.

The court's limitless definition of "health" is why Justice Anthony Kennedy's dissent characterized Justice O'Connor's redraft suggestion as "meaningless." The court majority has usurped the political process that resulted in 30 state laws by dictating that the states can enact a partial-birth abortion ban only if it contains an exception for any reason or no reason. If such an impotent law were enacted and challenged, the court might even be magnanimous enough to uphold it.

Some, including myself, have considered suggesting that partial-birth bans could be redrafted with a "health" exception limited to significant long-term physical risks. After all, that could force the Court to revisit its broad definition of health in the abortion context. However, I join in the opinion of many attorneys who have defended partial-birth bans that such legislation would do more harm than good given the court's current composition.

First, it would mislead the public into thinking that there is an effective legislative solution. Second, it would waste limited resources by funneling tax dollars to abortion advocate lawyers who are awarded attorneys fees after each of their many court victories. But most importantly, it would distract the public from putting the necessary effort into the presidential campaign, which is the only viable political redress given that the next president will likely appoint several new justices.

The partial-birth abortion decision is just one example of a dangerous trend in American political life that of quietly yielding to the court and surrendering our system of self-government to a group of nine unelected lawyers. Every major cultural decision made by the people of our great nation is now invalid unless stamped with the imprimatur of the Supreme Court. Partial-birth bans in over 30 states expressing the will of the vast majority of the American people are brushed aside as mere suggestions simply because five unelected lawyers disagree. The judicial usurpation of the legislative process is almost complete.

Legislatures can and should issue resolutions denouncing the court's illegitimate exercise of legislative power. But now is not the time for futile legislation aimed to satisfy our desire for a victory, even if it is an empty one. Rather, for the sake of our nation's continued freedom, we must focus on putting an end to this unjust judicial activism by exercising our power at the polls.

Dorinda Bordlee, a special assistant attorney general in Louisiana, defended that state's partial-birth abortion law before a federal appeals court and filed with the U.S. Supreme Court a friend-of-the-court brief defending Nebraska's law.

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