Federal judge Richard Casey has called partial-birth abortion "gruesome, brutal, barbaric, and uncivilized." So why did the New York district judge last month overturn a ban on the procedure, anyway? Because he believed the letter of the law required him to.
The trial before Judge Casey had given pro-lifers hope that finally a court would face up to the real issues in the late-term abortion procedure. While abortion activists do everything they can to prevent medical facts from coming to public awareness about how abortions are performed and what the fetus experiences, Mr. Casey allowed testimony from medical experts in the case (National Abortion Federation vs. Ashcroft). He also asked probing questions of those who defended the procedure, forcing them to admit that the abortionists kill live babies. The judge, who is blind, heard evidence about the pain experienced by the fetus during the abortion. He concluded that partial-birth abortions, which go by the euphemism D&X for "dilation and extraction," "subject fetuses to severe pain." He was also troubled that the doctors who commit these abortions tend not to be concerned by the child's pain and do not tell the woman having the abortion what her child is going through.
Judge Casey also found that the medical reasons pro-abortionists advance to justify partial-birth abortion are "false," "incoherent," or "merely theoretical." He rejected the myth that partial-birth abortion is sometimes justified by a woman's medical condition. "In no case involving these or other maternal health conditions," he wrote, could defenders of the procedure "point to a specific patient or actual circumstance in which D&X was necessary to protect a woman's health."
So why did he toss out the law? He said that he had to. He cited the Supreme Court decision Stenberg vs. Carhart (2000), which ruled that when there is a difference of medical opinion about the safety to the mother of an abortion procedure, "a health exception is constitutionally required."
Now if, as he said, he could find no case in which the mother's health would require a partial-birth abortion, one wonders why a health exception would apply in this case. But Judge Casey's reluctant decision to follow the letter of the law, instead of his own beliefs, illustrates why conservatives are at such a disadvantage in the judicial wars.
Liberal justices have no problem imposing their personal beliefs onto the law. According to legal theory, as taught in most prestigious law schools and legal journals, a law has no objective, permanently fixed meaning, and so interpretation involves constructing a meaning. In practice, this justifies seeing the Constitution as an open-ended, evolving document that can be creatively applied to the needs of the time.
Conservative jurists, though, disagree. They believe that the law does have an objective meaning and that a judge's job is to apply that law. The meaning of the Constitution is to be found in the original intention of its authors. Judges are not supposed to impose their own values or beliefs and to rewrite the law accordingly. Rather, judges should see themselves as being under the law, not over it, as liberal legal theory would place them.
This puts conservatives at a significant disadvantage. Liberal jurists can throw out laws they do not like, while insisting that people follow the laws they do like to the letter. This puts conservative jurists, who on principle follow all laws, at their mercy.
This judicial stranglehold leads to constitutional crisis. When courts make laws-and not the people or their elected representatives-we have passed from democracy to oligarchy. When the courts are no longer bound by the Constitution, then their power is unbounded.
If all judges had the integrity of Richard Casey, including every member of the Supreme Court, our legal system would work as the Constitution intended. Until then, who gets to make judicial appointments-along with who will be willing to ratify them-is one of the most important issues in the upcoming presidential election.