Judiciocracy -

That is what U.S. District Judge Richard Casey in New York thinks about partial-birth abortion. Unfortunately, Casey's thoughts about the procedure were not enough to keep him from declaring the Partial-Birth Abortion Ban Act unconstitutional last Thursday. Partial-birth abortion might be gruesome, brutal, and all the rest, but it is also medically necessary—at least in Judge Casey's view.

Several doctors made a compelling case in court that partial-birth abortion is never necessary to save a mother's life. However, opponents of the ban also brought in doctors, including abortionists, to support their case. Judge Casey wrote in his ruling, "The Supreme Court has held that when there is such a division of medical opinion, a health exception is constitutionally required."

It would seem to me that where this kind of disagreement exists, someone should attempt to find out which side was right and which was wrong. But apparently the mere fact that a division existed was enough to make Judge Casey rule as he did. It makes you wonder how judges can do their job at all—after all, doesn't a division of opinion exist on almost any issue you could name?

Casey is the second judge in the past three months to rule the ban unconstitutional, and his decision is especially disappointing. As we mentioned here on BreakPoint a few months ago, while he was hearing the case, Casey showed a praiseworthy determination to find out all the facts about partial-birth abortion. He repeatedly pressed abortionists to describe the procedure in detail, despite their obvious reluctance. He also questioned them about fetal pain and wouldn't let them get away with evasions or euphemisms. But even after digging up the grizzly truth, he still overturned the ban.

Although the case will be appealed, the results are still discouraging—in more ways than one. It's not just that a respected legal mind heard all the facts about a procedure that clearly destroys an already born human life and decided that this procedure should remain legal. It's also a depressing reminder that we seem to be living in a "judiciocracy," where members of the judicial branch are making all the decisions for the rest of us less-enlightened mortals.

And liberals have learned this lesson well; every time a law is passed they don't like, they head straight for the courts, where they are very often assured of a sympathetic ear. As Judge Robert Bork points out in his book Coercing Virtue, "Increasingly, the power of the people of Western nations to govern themselves is [being] diluted, and their ability to choose the moral environment in which they live is steadily diminished."

As I said, this particular fight is not over. And that's particularly true in an election year. The candidates we elect in November will appoint and approve the next crop of judges and justices across the land. The decisions we make in the voting booths have a direct effect on the decisions they will make from the bench.

That is why some sort of Federal Amendment on marriage is necessary to prevent the ultimate social/cultural victory for the Left.

If the recently failed Amendment cannot pass, then the GOP should try another with a better chance of passage, one that calls the bluff of many Dems who claim to support states rights on the matter. It could stop short of banning gay marriage, and instead simply bar the courts from deciding the issue and explicity empowering Congress to handle the matter for federal purposes and the states for their own purposes.

Unfortunately, this whole approach underestimates the smug arrogance of abortion doctors. One wrote an article in which he said that if the Partial-Birth Abortion pan were upheld, he would merely inject some poison into the baby. Then it would be dead, the poison would be endangering the life of the mother (but had not YET harmed her) so what does one do? The doctor would merely be removing that dead, harmful tissure from the would-have-been mother.

And none of that would be illegal, since the particular procedure that is prohibited in the Partial-Birth Abortion ban was not used, except on demonstrably dead tissue. In that case - an already dead infant - it is clear that crushing it in situ and then pulling the pieces out is less hazardous to the mother than doing nothing of doing a Ceasarian.

Even if the court upheld the Partial-Birth Abortion ban and then extended it to cover whatever loophole the abortionists were using, they'd just find another way around it. The only viable way to 'fix' this problem - short of a total ban on abortion - would be to prohibit the termination of a viable infant, defined as one which has a reasonable chance of surviving outside the mother with no more than normal neo-natal care.

And that's a long way from being passed.

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