On January 22nd, 1973, the Supreme Court of the United States handed down their decision in the case of Roe vs. Wade. Thirty-five years later, we’re down to about 1.2 million abortions in the US per year (down from 1.5 million at the high point) and abortion is legal in all 50 states for almost any reason. This leaves me with but one conclusion: the pro-life movement has been a complete and utter failure.

After 35 years of voting for “pro-life” candidates (a code word often meaning “Republican”), the political arm of the pro-life movement has little to show for their efforts beside parental notification laws in 34 states and a partial birth abortion ban that Justice Kennedy practically begged someone to challenge. All, in all, the pro-life movement has had marginally more success than American Medical Marijuana Association despite the “support” over the years of many prominent politicians. Fool me once, shame on you, fool me for 35 years running, and I’m a pro-life activist.

To the credit of the pro-life movement, more and more people are realizing that doing the same thing over and over again will not yield different results. Germain Grisez admitted as much a few years back, but he never had the audience to make enough of a difference. On January 20th, in a move guaranteed to generate a firestorm of letters from irate EWTN fans, Fr. Benedict Groeschel invited a man to his show by the name of Msgr. Phillip Reilly, who was willing to speak the truth and unmask the pro-life movement’s work for what it is: a failure. Msgr. Reilly realized this a few years back and decided to try a radically different approach: no more shouting and yelling, no more making young mothers feel like they were evil incarnate because they were contemplating abortion. Msgr. Reilly founded the Helpers of God’s Precious Infants. The weapons he chose were not sound bites, placards or the ballot box, but rather prayer and love… for the baby, the doctor and most especially, the mother, regardless of what choice she made inside the clinic. The approach is not particularly new — prayer & sidewalk counseling has been around for a long time — but his willingness propose it as a model opposed to the traditional shout and vote approach was quite impressive.

Whether folks will listen to Msgr. Reilly or not is anyone’s guess. But perhaps come January 22nd, next year, there will be be a little less failure… and a little more hope thanks to Msgr. Reilly. There are a lot of moms out there who could use it.

Last year’s session of the SCOTUS had Chief Justice John Roberts’ fingerprints all over it: carefully constructed and very narrow decisions designed to maximize the number of justices supporting the ruling. As a result, the court had a large number of unanimous or near-unanimous rulings. While the partisan battles raged on Capitol Hill and Pennsylvania Avenue, the SCOTUS was the sole bastion of collegiality left in Washington. And to be honest, last year’s session is something to be proud of: Chief Justice Roberts’ pragmatic judicial philosophy won out over the hard-core ideologues (like Scalia). Unfortunately, the “Collegial Court” of ’06 has been replaced by the “Partisan Court” of ’07. The Chief Justice who prides himself on judicial minimalism has now found himself unable to reconcile the warring camps of Red (Alito/Scalia/Thomas) versus Blue (Ginsberg/Stevens/Breyer), leaving himself, Anthony Kennedy and David Souter to split up into what is invariably a 5-4 decision if the case is at least contentious.

The 5-4 ruling on the Federal Partial Birth Abortion Ban was the beginning of the end for the Roberts Court. As noted in the annals of the 12 Angry Men Blog, Roberts managed to pull together a narrow majority which rested on Justice Kennedy practically begging for another plaintiff to sue to invalidate the law. Justice Ginsberg’s dissent was loud, angry and shrill, full of the partisan rancor which had finally bled into the last branch of government.

From abortion, the “third rail” of American partisanship, the Partisan Court moved to racial discrimination with a 5-4 opinion (exact same lineup, go figure) ruling that school districts in Seattle and Louisville are illegally discriminating based on race. Here the plans which largely rely on race as a tiebreaker to try to insure a diverse student body at each school are struck down by the Partisan Court. Justice Roberts was caught uttering the vacuous tautology, “The way to stop discrimination on the basis of race is to stop discriminating on the basis of race,” which the majority appeared to take as a condemnation of the school policies. The left-leaning justices were (as one might be expect) quite displeased. Justice Breyer, in his minority opinion, notes that the ruling will “substitute for present calm a disruptive round of race-related litigation.” No doubt Justice Breyer isn’t looking forward to the new wave of racial litigation which will inevitably arrive on the docket of the SCOTUS courtesy of Meredith v. Jefferson County Board of Education and Parents Involved in Community Schools v. Seattle School District No. 1. Justice Stevens is even more pointed, noting that, “It is my firm conviction that no member of the court that I joined in 1975 would have agreed with today’s decision.”

Next up we have another 5-4 ruling (same cast… is this a surprise to anyone at this point?) in Leegin Creative Leather Products v. PSK Inc. Here the majority of the Partisan Court decided to pitch a 96-year-old ban on retail price maintenance agreements under the Sherman Antitrust Act. The law basically set that any agreement between the manufacturer and the retailer to fix a minimum resale price was a prima facie violation of Sherman. Seeing as these agreements were often use by producers to hamstring un-cooperative retailers (by only selling to those willing to adhere to the manufacturer’s price), the SCOTUS ruled that such agreements were unconstitutional. But the Partisan Court, prodded by the Bush Junta and Milton Friedman’s economic love children decided that what was bad for producers was bad for America (nevermind the consumers and retailers who are getting the shaft) and pitched 96 years of settled law. So much for judicial minimalism, Justice Roberts.

In the field of capital punishment the Partisan Court issued another 5-4 (Kennedy switching sides, but otherwise the same teams), blocking the execution of Scott Louis Panetti by the state of Texas (I mean, where else would this happen?). Despite being (a) bat-shit insane, (b) convinced that he was healed by the hand of the Almighty, (c) off his meds and (d) representing himself in court (having fired his lawyers), the jury of the “kill ’em all and let God sort ’em out” convicted him in 90 minutes and sentenced him to death. I mean, I can’t even get my insurance company to give me the time of day in 90 minutes, but in Texas, that’s enough time to legally decide to kill a man who’s a complete kook. Justice Thomas, dissenting, called the ruling “a half-baked holding that leaves the details of the insanity standard for the district court to work out.” Justice Thomas, of course, failed to note that the SCOTUS never bothered to work out that standard either (beyond some vague outline in Ford v. Wainwright). I believe that the NYT summarizes Mr. Panetti the best with the quote, “A schizophrenic who served as his own lawyer in court and mounted an often incoherent defense, Mr. Panetti claimed that his body had been taken over by an alter ego he called Sarge Ironhorse and that demons were bent on killing him for his Christian beliefs.”

I could go on about union cards or pay discrimination, also brutal Red vs. Blue fights, but I’ve made my point. The SCOTUS has become the Partisan Court. And now that it’s partisan, it’s time to follow in the footsteps of Adams, Jefferson, Jackson, Lincoln, Grant and Roosevelt and stack the court. After all, if the SCOTUS is now just a political toy, it’s time again to treat it as such.

Simply put, Chief Justice Roberts has failed. And it’s America that loses out.

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?