For the first time since it OK’d the likes of parental notification laws, the SCOTUS has agreed to allow some modicum of restriction on abortion. Pro-abortion advocates are, as usual, predicting the immediate destruction of Western civilization, since a tiny chink in the armor of death has been created by the SCOTUS. Pro-life advocates are dancing in the streets for “victory” over the forces of abortion, despite the fact that the partial-birth abortion (PBA) procedure is rarely used, and given Justice Kennedy’s comments, the law will be eviscerated by the Court in a few years’ time anyway.

The problem, from a legal perspective, with the PBA ban is the same problem the SCOTUS found with Nebraska’s PBA ban a few years back — there’s no legal exception for the health of the mother (a life of the mother exception is included). The framers of the bill left it out, because the “health exception” in US abortion law basically means “abortion on demand.” As it has been noted many times this is wide open for abuse. Thus, a law banning PBA with a health exception in it is completely meaningless.

The Court’s basic logic is that the PBA ban restricts a procedure and does nothing to effect the availability of abortion. This is true. Besides, during late term pregnancies where PBA is used, it’s much more common to dismember the fetus in utero, rather than than in the “partial birth” framework. So the lack of a health exception is no big problem, the court ruled, just do the dirty deed in utero, and you’re golden.

Despite the fact that Justice Kennedy wrote the majority opinion, he’s already attached his own caveats to his ruling. An AP/Yahoo article notes, “[Justice] Kennedy said the court could entertain a challenge in which a doctor found it necessary to perform the banned procedure on a patient suffering certain medical complications.”

Translation: Justice Kennedy’s opinion suggest that he’s willing to leave the “health exception” implicit and keep the law for now (and entertain it in a challenge should when it comes up later). You can see Chief Justice Roberts’ influence on this ruling — it’s minimalistic and deals with things on an as-needed basis. When the challenge occurs, the SCOTUS would likely either ditch the law entirely, or carefully carve a “health exception” sized hole in it.

While the ruling injects a modicum of sanity into the abortion debate, it will likely change very little (especially if Kennedy’s invited challenge comes up soon). It is incredibly unlikely that the US will start taking the heath exception seriously (as an exception rather than a blanket permission) any time soon. To us cynics who called it in advance during the Roberts and Alito hearings, the new boss is looking a lot like the old boss.

To the pro-abortion lobby: Stop living, eating, breathing in sleeping your own ridiculous propaganda! Dr. LeRoy Carhart, who noted , “I am afraid the Supreme Court has just opened the door to an all-out assault on” Roe V. Wade, is a textbook example of this recto-cranial inversion. I know you need to rally your troops to stop even the slightest restriction on abortion on demand, much like the NRA does for even the slightest suggestion about restricting the right to own as many honking huge weapons as you could possible want, but please, SHUT UP! This ruling changes nothing and if you’ll stop believing your own propaganda for just a moment, you’ll realize that this changes nothing.

To the pro-life lobby: If this is a “victory” after 30 years of miserable failure in trying to stop abortion, then you really need to raise your standards. Jay Sekulow, the conservative American Center for Law and Justice, noted, “This is the most monumental win on the abortion issue that we have ever had.” If the rest of you feel the “victory” is as “monumental” as Mr. Sekulow does, then you are not just pathetic, but pathetically deluded. Germain Grisez realized that the pro-life movement had failed years ago and that a severe tactical shift was in order. When will the rest of you get a clue?

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