That being said, doesn't this put pro-lifers more or less on the same ground as pro-choice Roe diehards, in that we appreciate a weakly-reasoned SCOTUS ruling for its instrumental value? I don't feel so great about that.
Saletan, who is pro-choice, points out that the next front for pro-lifers is passing bills requiring women seeking abortions to watch an ultrasound image of their unborn children before exterminating them. He writes, "Ultrasound has exposed the life in the womb to those of us who didn't want to see what abortion kills. The fetus is squirming, and so are we." More:
Critics complain that these bills seek to "bias," "coerce," and "guilt-trip" women. Come on. Women aren't too weak to face the truth. If you don't want to look at the video, you don't have to. But you should look at it, and so should the guy who got you pregnant, because the decision you're about to make is as grave as it gets.
UPDATE: A lawyer reader disagrees about my negativity on the SCOTUS ruling, writing:
While I agree with you about being happy on the way this case turned out, I have to disagree with the assertion that the reasoning was feeble or weak. After distinguishing the Partial-Birth Abortion Ban Act from the one struck down in Stenberg, the Court does not have to give reasons why "intact D&E" and "D&E" are different and therefore one is better, morally, than the other.
What the Court does (and should do) is examine Congress' factual findings regarding the banned procedure. While some of the conclusions are disputed, the Court rightly decided that Congressional factual findings are due more deference than some district court judge's findings made in this trial. That was as far as the Court needed to go, it was merely an application of law.
The difference between reliance on this case and reliance on Roe is that this case is not made up whole-cloth. It's a standard application of legal principles, settled precedent, and not the hijacking of the Constitution and replacing it with personal preferences. While it's not as far-reaching as Justice Thomas's dissent would wish (ie, reversal of Roe v. Wade), that question wasn't properly before the Court and it properly wasn't reached in the majority opinion.
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As your reader points out, Rod, the SCOTUS reasoning wasn't weak at all. The dissents were ludicrous. All the Court properly decides here is whether Congress had the constitutional authority to pass the law it approved. Whether that law is good, bad, or ugly is irrelevent to the analysis of whether it is constitutional.
A Court has no competence to decide which forms of abortion should or shouldn't be legal, and that's not what this decision was about. That is, however, exactly what the 4 dissenters attempted to do.
All the Court properly decides here is whether Congress had the constitutional authority to pass the law it approved. Actually, opponents of the law did not employ the strongest weapon against it: authority (or lack thereof) under the Interstate Commerce Clause. If they had used that argument, they may have gotten Thomas and Scalia to go along, as their concurrence hints at.
Indeed, the Commerce Clause might have prompted Thomas (and possibly Scalia) to strike down the law. But nobody else on the Court, certainly not any of the 4 liberal dissenters, wants to open that Pandora's Box. That's why the opponents of the PABA didn't even raise or brief that issue.
This is a worthwhile riposte to Saletan: http://www.prospect.org/weblog/2007/04/post_3585.html#016432
It is worth pointing out that no one wants to provide full Constitutional protections and rights to the unborn, even in the most ardent anti-choice instances. No one wants to amend the definition of citizen to include them, or to give them any property, or any liberty. Nor has ony one even suggested holding inquests or requiring death certificates. I also note that no one wants to count age from conception. I am aware of no religion that counts the unborn as members or that holds funerals for them. All that I can conclude is that pro-life does indeed equal anti-choice and pro-government control.
I also question the ethics of justices who bear allegiance to a foreign government that not only condemns our Bill of Rights but also interferes with our government officials inthe performance of their duties.
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