May 26th 2007

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Articles from this issue:

COVER STORY: CANBERRA OBSERVED: Kevin Rudd still in front

EDITORIAL: East Timor: end of the Fretilin era?

HOUSING: Soaring house prices give illusion of wealth

LABOR PARTY: Sir Rod Eddington, Labor's business guru

PRIMARY INDUSTRY: Vital issues in wheat single-desk decision

OPINION: Family First takes on Howard's workplace laws

DRUGS CONFERENCE: Reality check needed on illicit drugs

SCHOOLS: Choice would be eroded by centralisation

INTELLIGENCE CORNER: Shssh - don't mention the war!

WORLD HEALTH ORGANIZATION: Politics could worsen global health pandemic

QUARANTINE: Drought used as excuse to relax quarantine standards

STRAWS IN THE WIND: No kangaroo meat - thank you very much / Tony Blair - a class act / Vladimir the Cruel / Turkey - between a rock and a hard place

UNITED STATES: US Supreme Court bans partial-birth abortion

WORLD AFFAIRS: Islam: the questions which must be answered

States more accountable than Canberra (letter)

Problems facing Brisbane-to-Melbourne rail-link (letter)

News Weekly informative, timely (letter)

The media and freedom of speech (letter)

CINEMA: A luminous film of great beauty

BOOKS: WHAT'S LEFT? How Liberals Lost Their Way, by Nick Cohen

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US Supreme Court bans partial-birth abortion

by Charles Francis, AM, QC, RFD

News Weekly, May 26, 2007
The US Supreme Court's decision to ban the horrific practice of partial-birth abortion is only one small step in the right direction, argues Charles Francis QC.

Judicial activism or supremacy, in its present form, emerged with the appointment of Earl Warren as Chief Justice of the US Supreme Court in 1953. Warren had had no judicial experience, no understanding of the principle of the separation of powers, and acted as a politician and legislator rather than as a judge. The activist disease unfortunately spread to some other members of the court.

The ultimate judicial activism and arrogance came in January 1973 in the majority decision in Roe v. Wade and Doe v. Bolton, which found, in “emanations” from the “penumbra” of the US Constitution, that a woman had a virtually unrestricted right to terminate her pregnancy provided it was deemed medically necessary to preserve her life or health. All that was needed was a doctor who agreed to perform the abortion. What was “medically necessary” was determined by the abortion industry itself.

As Justice Byron White said in dissent, the Supreme Court's ruling was “an exercise of raw judicial power”. Justice White found “nothing in the language or history of the Constitution to support the Court's judgment. The Court simply fashions and announces a new judicial right”.

Later, in Planned Parenthood v. Casey (1992), the Court linked its own legitimacy in a circular argument. Roe v. Wade had to be cast in stone lest the Court's legitimacy be undermined. In order to maintain the Court's legitimacy what was an illegitimate decision could not be criticised. Neither Roe nor Casey was based on any plausible reading of the Constitution. The Court in Casey did, however, say that the states had a legitimate and substantial interest in preserving and promoting foetal life. Bravo!

It was against this background on April 18, 2007, that the US Supreme Court delivered its important decision in Gonzales v. Carhart.

In 2003 Congress enacted the Partial-Birth Abortion Ban Act prohibiting the horrific practice of partial-birth abortion. The Act's legality was challenged on the basis of Roe.

Partial-birth abortion is designed to kill a viable child. The unborn child is turned around in the womb so that it is born feet first. Before being completely extruded, the baby is killed so that it is not “born alive”. The abortionist pierces the baby's skull and suctions out its brains, an agonising death.

Performed in Australia

It is difficult to believe that this procedure can be performed in a civilised country, but in the USA it was at all times lawful after Roe v. Wade. Some partial-birth abortions are performed in Australia.

One of the difficulties for those opposing the 2003 Partial-Birth Ban Act was that the evidence could not show any circumstances in which a partial-birth abortion should be performed in the interests of the mother's health. Indeed, it represents an added risk to the mother's life or health.

Referring to the expert medical evidence, the Court expressly said that a “moral, medical and ethical consensus exists that the practice of performing a partial-birth abortion … is a gruesome and inhumane procedure that is never medically necessary and should be prohibited.”

Justice Anthony Kennedy's majority opinion was a finely reasoned effort to make sense of a slight retreat from anything-goes abortion law. It acknowledged that the US government had a legitimate interest in preserving human life including foetal life.

In other ways, the opinion bodes well for the future of abortion law. It repeatedly acknowledges the humanity of the unborn child and refers to the prenatal human as a “child” and “an infant” and calls abortion “killing”. The justices also ended their usual deference to the medical claims of abortion doctors.

Furthermore, the Court read the statute to mean what it says. Previously, abortion law phrases were often twisted to create vagueness and confusion where none in fact existed. The Court's new candour about unborn life and abortion and an apparent willingness to uphold reasonable regulations augurs well for greater respect for life in the future and is discouraging of abortion.

The dissenting judgment by Ruth Bader Ginsburg was the legal equivalent of jumping up and down, screaming and yelling. To Ginsburg, if doctors cannot end life in this particularly barbaric manner, it is The End of Western Civilisation.

Democratic candidates for the 2008 US Presidential election, Hillary Clinton, Barack Obama and John Edwards, all denounced the Supreme Court's opinion in the strongest terms, falsely inferring it was a threat to women's health.

They will provide quite a target for the strong pro-life movement in the US in the run-up to the election for President next year. Candidates showing blood on their canine teeth don't make for a good photo-op.

Hillary made it fairly plain she would prefer any pro-abortion bumpkin on the Supreme Court bench rather than one with the legal skills of Chief Justice Roberts and Justice Alito.

We have every reason to be grateful for this judgment, but we need to recognise it is only a small step in the right direction - but of such small steps is civilisation made.

- Charles Francis, AM QC RFD, is a retired Melbourne lawyer and former Victorian MP.

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