Wednesday, February 4, 2004

On Monday, U.S. District Judge Richard Williams struck down Virginia’s ban on partial-birth abortion. Not content with merely overturning state law arbitrarily, he used his condescending ruling to denigrate pro-lifers. The judge declared that his decision was an example of a “no brain case” because the abortion restriction was “impermissibly void for vagueness.” We disagree with the specifics of his ruling and with the peremptory manner in which this appointed judge cavalierly nullified a law supported by a state’s democratically elected representatives.

There is nothing vague about the statute banning partial-birth abortion. It has 23 precisely worded paragraphs describing exactly what is and what is not prohibited by the ban. To construe this as vague is to willfully ignore the statute.

Approximately three-quarters of Americans support the ban on this gruesome late-term procedure. To date, President Bush has signed and at least 30 states have enacted partial-birth abortion bans — but most of the state laws have been overturned by judges already or are being challenged in court. Judge Williams disagreed with the Virginia law’s characterization of partial-birth abortion as infanticide and demanded that a clause permitting it to protect the health of the mother be included. With such an exception, the vague definition of what constitutes health effectively means the procedure can be used at any time.

In reviewing statutes such as this one, that are not unconstitutional on their face, black-letter law enjoins courts to pay great deference to the judgment of legislatures. While by long-established precedent the judiciary has the final say in the matter, courts abuse that power when they substitute their policy judgment for that of the elected legislatures. Judge Williams’ latest ruling is an example of the growing crisis of a judiciary that is out of control. In a vow to appeal this fiat to federal appeals court, Virginia Attorney General Jerry Kilgore stated, “Virginia absolutely has the right to define when a live birth has occurred, and our society should not allow the murder of babies just as they are inches away from drawing their first breaths.” In this case, the Virginia House of Delegates voted for the ban by an overwhelming margin of 72-27, and the Senate voted 27-12.

The tricky constitutional question is what to do about the judicial usurpation of power. Delegate Robert Marshall of Prince William County, who wrote the ban, is pushing for judicial impeachment. That might be effective in limited cases, but it is not a practical solution for the hundreds of judges abusing their authority. Until voters choose governors and presidents who will appoint responsible judges, the rising tide of judicial abuse of authority will only continue.

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