15 March 2003
C. D. "Dodd" Harris IV is persuaded that this new abortion bill, hailed as a victory by abortion foes, is actually anything but:
To the extent that the bill really is limited to the vanishingly small percentage of abortions that are both 1) performed using the D&X procedure and 2) "in or affecting interstate or foreign commerce", this law is not a victory; it's an active impediment to putting an end to this inconscionable form of infanticide once and for all. The bill fails to advance the cause either way you slice it. Either it's supposed to encompass all partial-birth abortions (in which case it exceeds Congress' Constitutional authority) or it only applies to abortions which involve a participant crossing state lines or some such (in which case it isn't worth the paper it's printed on).
The President will certainly sign it, and it will almost immediately be challenged in the courts. Dodd thinks if it gets to the Supreme Court, it will be struck down, perhaps for the very reasons he cites. I'm not so sure you can get five of the Supremes to reject it, but the point is this: whether you consider D&X a routine medical procedure or a heinous violation of the Hippocratic Oath, the Congress does not have the Constitutional authority to regulate it. (Which is why, of course, that lame bit about "in or affecting interstate or foreign commerce" was thrown into the bill to begin with.) If they're going to ban these procedures, and I have no doubt that they are it's damnably hard to defend something that gruesome they need to do it on a basis that will pass Constitutional muster: state by state, county by county if necessary, until one of those jurisdictions comes up with a ban that stands up to any challenges. It can be done. Eventually it will be. In the meantime, the current bill may be useful for rallying the troops on either side of the issue, but otherwise it's just window-dressing, and not particularly attractive window-dressing at that.