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Question Re: Partial-Birth Abortion | by webwalrus | 2003-11-06 06:37:25 |
| It's still "legal" |
by JohnClarke |
2003-11-06 07:38:26 |
wherever it was "legal" before.
The exact text of the legislation is "Any physician who, in or affecting interstate or foreign commerce,". There is a reason for that--there is no power enumerated to Congress under the Constitution that would allow the Congress to directly forbid abortions of any kind, so, as is their normal practice, they applied the Commerce Clause, which grants them the power to regulate interstate commerce, to implement such a ban in a limited form. I think it's going to turn out that the main effect of the new Federal law will be to make it unlawful for a physician in one state to perform an abortion on a woman who he knows or has reason to believe is a legal resident of another.
As to your other point, you have to understand that the Unites States is the United States. When the Constitution was ratified it was thought of a a league of independent nations that have agreed among themselves to cede certain powers to a Federal government. Those powers ceded were sufficiently broad to make it appear to the casual observer that the Federal government has all power, but it does not--the states have a great deal of freedom in the regulation and management of their internal affairs, while the ability of the Federal government to meddle in those affairs is quite limited.
In the case to which you refer the Partial Birth Abortion was unlawful in the state in which the charges were filed, so there is no inconsistency. Now, I believe you previously argued that there were other states in which such an abortion was lawful--in point of fact there were darned few, but that's beside the point. The legislators in the state in which the charges were filed decided that in that particular state it was unlawful. Those legislators have no power over any other state unless they want to start a civil war and attempt to use their National Guard units to conquer that state, so the fact that another state has a different law does not create an inconsistency.
So, yes, if a woman could get a full term baby aborted on a whim in that state there might be an inconsistency--in effect they would be granting the mother the authority to kill a person that some other person was prohibited from killing. But that was not the situation in that state.
And yes, she could have gotten such an abortion in another state and it would have been lawful and she could not have been prosecuted in her state of residence--while this is apparently inconsistent, it's really an artifact of provisions of the Constitution that were intended to prevent a kind of political infighting in which different states enacted laws intended to allow them to harass each others citizens, which had been a problem under the Articles of Confederation. To address this the Constitution would have to be amended to remove the Equal Protection Clause or to grant to the Congress unlimited power to prohibit abortion. And neither of those is going to happen. So we will continue to have the situation in which something that is lawful in one state is a crime in another, but the state in which it is a crime may not arrest someone who performed the act in a state in which it was lawful. That's just the way the law works in the U.S. at this time.
In an ideal world such inconsistencies might not happen. But we do not live in an ideal world. |
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