The “Partial-Birth Abortion” Game

In one of the least surprising developments in legal history, the recent federal act criminalizing D&E abortions was struck down in federal courts. This was inevitable, because the law directly contradicted a Supreme Court precedent that was less than 4 years old.

So why did the law pass in that form? Because, of course, it suits the interests of a Republican Congress. Substantively restricting abortion rights–particularly in a way that makes doctors vulnerable to prosecution–would be an electoral disaster for the Republican Party. Letting the courts strike it down creates a useful symbol for wingnuts in Congress, without unduly arousing the pro-choice majority. The law is symbolic politics, nothing more. (And there is, therefore, nothing “counter-majoritarian” about the courts striking down this law.)

Another point that has been made less often is that the law provides the umpteenth example of how unprincipled the new conservative “federalist” jurisprudence is. Congress claimed authority for this legislation under the Commerce Clause, but obviously this legislation can only be defended under the assumption that the federal government has implicit police powers. That’s OK with me, but it certainly can’t be reconciled with cases like Morrison. To state the obvious, this “federalist” jurisprudence is strictly result-oriented.