The Lincoln Plawg - the blog with footnotes

Politics and law from a British perspective (hence Politics LAW BloG): ''People who like this sort of thing...'' as the Great Man said

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Monday, April 26, 2004

Abortion: the bright line and the smear

The bright line is the threat that a new Supreme Court roster will overturn Roe v Wade: a clear, yes or no answer is implied. The smear is the result of trying to draw the line on the legality of performing an abortion in particular cases. Questions of gestation period, abnormality, waiting times, state funding, etc, etc. (The difficulties of abortion rights supporters in relation to strategy I discussed yesterday.)

On the drawing of the line, not even the most ardent pro-abortion lobbyist, I suspect, would claim the right to abortion on demand up to 40 weeks. Which implies that a line must be drawn somewhere. It's messy and hard to develop any sort of PR message around.

No wonder pro-abortion groups major on the threat to Roe. As in John Kerry's latest ad.

The V/O gets right to the point:
The Supreme Court is just one vote away from outlawing a woman's right to choose...

The guys at Factcheck have checked: and the Kerry ad is wrong. The correct number is two.

They figure it this way: Planned Parenthood v Casey broke 5-4 for Roe. Since, anti-Roe White has retired, replaced by pro-Roe Ginsburg. Only Rehnquist, Scalia and Thomas remain of the Casey nay-sayers.

The pro-abortion lobby counts Kennedy on the strength of his vote with the Three Horsemen in the Nebraska partial birth abortion case of Stenberg v Carhart.

As usual, Stenberg is fractured - if not quite the pick-n-mix abortion (as it were) one sees with some USSC cases. Factcheck points out that Kennedy's dissent - joined in by Rehnquist - includes the sentence
The holding of Casey, allowing a woman to elect abortion in defined circumstances, is not in question here.

Kennedy was arguing that there were acceptable alternatives to the methods proscribed by the Nebraska PBA law. He was necessarily assuming that Roe was still good law.

At first blush, it's a pretty crass piece of spin. (Spin that's checkable online in seconds...) Since so much of the case against Bush is his terminal inability to stick to the facts, it doesn't help Kerry to be caught weaselling himself.

Perhaps there are subtleties not immediately apparent. Re-read Stenberg, I think...


The PR attractions of majoring on the Supreme Court and Roe, rather than on more detailed issues with abortion law and practice, is that almost all of the applicable law is state law. The NARAL site has a page from which summary information for the several states may be had, whose complexity illustrates the point.

There is now Federal law in the form of S3 and HR 1997, which makes the PR task a little easier (one law instead of 50!). The litigation being mounted against S 3 in various District Courts is can be followed from the Federal Abortion Bans Trials site.

One problem lies in the difficulty in explaining the case against S3 without a descent into more ickiness than the average adult TV audience can stand without reaching for the remote. (The Supreme Court opinions in Stenberg - which raised substantially the same constitutional questions as S3 - amply bear out the point.)

The risk/reward balance may well favour pro-abortion campaign staying away from public discussion of S3: better stick with the abstract right to choose and threat to Roe rather than expose the target audience to the realities needed to explain the arguments on S3, for the chance of winning a few of them over on the basis of opposition to S3.


Documentation in the S 3 cases in progress is available (with some large gaps apparent!):

The S3 Conference report (108-288) is not perhaps as helpful as it might be. (There will be other Congressional committee reports that may fill in some gaps, I suspect.) In the Findings section, play is made of two features of the Stenberg case:
  1. the favourable findings of fact of the District Judge, to which the higher courts gave deference, have (it says) been superseded by new evidence; and

  2. in litigation on S 3, the courts will give deference to the findings of Congress.

However, the fact that TROs have been forthcoming from all three District Judges is some indication that S3 is heading for the knacker's - because that means the plaintiffs have already persuaded them that they are substantially likely to win on the merits.

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