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With a number of retirements likely at the U.S. Supreme Court, the speculation begins about whether a shift in the court would result in overturning long-standing decisions like Roe v. Wade. To many it is clear that Roe was wrongly decided nearly 32 years ago. The high court declared that human children prior to birth are not “persons” for purposes of the 14th Amendment. Many believe the ruling itself is unconstitutional because it drives a wedge between biological humanity (which prenatal human offspring definitely have) and legal personhood (i.e., the right to the equal protection of the law). Born human children, by contrast, indisputably enjoy the basic rights secured to all persons under the 14th Amendment. Consider, for example, Levy v. Louisiana (1968). What is not so clear, though, is whether Roe could be overturned during the next four years as new appointments to the court are made. First, overturning Roe is a worthy goal. It is bad law. It is legally flawed. However, it would take a major shift on the court for that to happen. Looking into the crystal ball at the Supreme Court does not always produce a clear picture. To overturn Roe, there would need to be numerous retirements-and replacements with justices who believe Roe was wrongly decided. All complicated and unpredictable scenarios. Is it possible? Yes. Probable? Hard to tell. What is probable, though, is a court that is reshaped and likely to embrace additional, reasonable restrictions on abortion-most significantly, upholding the national ban on partial-birth abortion. A ban on partial-birth abortion operates at the borderline between prenatal and postnatal life. As a consequence of Roe, this border separates, in the eyes of the federal judiciary, human nonpersons from human persons. Partial-birth procedures represent the beachhead of abortion’s assault on postnatal life, the bridge between abortion and infanticide. Partial-birth procedures open the way to legal infanticide. When the Supreme Court considered the issue in Stenberg v. Carhart in 2000, the court declared Nebraska’s ban on partial-birth abortion unconstitutional. But the issue was decided by the slimmest of margins (5-4). The four dissenting justices-Chief Justice William Rehnquist and justices Antonin Scalia, Clarence Thomas and Anthony Kennedy-took the opportunity to speak about their decision-and their pronouncements sent shock waves well beyond the legal community. An outspoken dissent In an unusual move, several of the justices who dissented spoke from the bench, highlighting this gruesome procedure. Kennedy criticized the majority, saying “the majority views the [partial-birth abortion] procedures from the perspective of the abortionist, rather than from the perspective of a society shocked when confronted with a new method of ending human life.” Thomas was even more pointed: “The court,” he said, “inexplicably holds that the states cannot constitutionally prohibit a method of abortion that millions find hard to distinguish from infanticide.” And Scalia said, “the method of killing a human child-one cannot even accurately say an entirely unborn human child-proscribed by this statute is so horrible that the most clinical description of it evokes a shudder of revulsion.” The procedure itself brought sharp reaction from the dissenters. In the words of Thomas: “The physician literally sucks the fetus’ brain from the skull.” Now, four years later, this issue is on the fast track to the Supreme Court once again. The Partial-Birth Abortion Ban Act of 2003 was declared unconstitutional by federal courts in New York, Nebraska and California. The cases are now before the 2d, 8th and 9th U.S. circuit courts of appeal. Those cases could end up at the Supreme Court next term. And with a number of replacements likely at the high court, a one-vote swing could result in a decision that allows some modicum of legal protections for the most vulnerable among us. It is certainly possible that a reshaped court could conclude that a human being who is partially outside the mother’s body is a person entitled to the equal protection of the law under the 14th and Fifth amendments. These amendments secure protection for the basic, minimum human rights any government must respect. At the same time, governments, and all their people, have a tremendously important stake in the unqualified prohibition of partial-birth abortion. The child who “crosses the goal line,” by foot or head, into the realm of judicially recognized “personhood” must receive the full protection of the law if we are not to abandon, inexorably, the sanctity of postnatal life as well. President George W. Bush has repeatedly said he has no litmus test for nominees, including those for the Supreme Court. In a post-election news conference, Bush said when there is a vacancy on the high court, he would select someone “who knows the difference between personal opinion and the strict interpretation of the law.” We take Bush’s pledge seriously. Jay Sekulow is chief counsel of the American Center for Law and Justice, a public interest law firm specializing in constitutional law and based in Washington.

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