The partial birth abortion ban ruling is a watershed moment in the abortion debate. It isn't because it "restricts a right for a woman to choose" or that "it is the beginning of the end of abortion", it's that it is a vindication for a common-sense understanding of the Constitution.
The foundational rights of this nation at the time of its creation were freedom of speech, freedom of religion, and due process. These ideas were supreme and everything else was built from there. Many laws were struck down simply because they conflicted, even tangently, with those rights. With Roe v Wade, something quietly but dramatic occurred.
The foundational right of the nation changed to be a "right to abortion". Even if one were to argue that abortion was a constitutional right encapsulated in a right to privacy that simply does not translate into a "right of abortion" that overrides all others.
Want to express your free speech in protest? You can't do it if it is too close to an abortion clinic because it might interfere with someone else's "right of abortion". Want to express your free association in forming a crisis pregnancy center to provide alternatives to abortion? You can't do it without significant government oversight, regulation and outright suspicion because it might interfere with someone else's "right of abortion". Want to be a pharmacist and still hold true to your religion? You can't due it because it might interfere with someone else's "right of abortion".
Skipping past the absurdity of applying the Bill of Rights to relations between people (as opposed to people and the government which it is supposed to do), the "right of abortion" became the foundational and formative governing principle of this country. If a right of abortion and free speech conflict, free speech must give way. If a right to religious expression and abortion conflict, religion must give way.
Not only in conflicts of rights, but also in the application of the law abortion has held pride of place. Children have no rights outside their parents consent, except in the sole case of abortion. Statutory rape laws and mandatory reporting laws apply universally, except when abortion is in the picture. Even normal medical regulations for clinic safety often go flouted by abortion clinics.
The partial birth abortion ban is nothing more than the government exercising regulatory oversight of medical practice. It does this every day. Procedures are restricted, drugs are restricted, medical providers are restricted. Yet, opponents argued that the partial birth abortion ban was unconstitutional because it supposedly conflicted with a "right of abortion".
The ban was also called unconstitutional because it was supposedly born in a "religious" idea that life begins at conception versus the idea born in convenience that life starts when... well, whenever it's convenient. The sweeping aside of ideas on church-state grounds simply because they may also be held by the religious is an absurd concoction of the First Amendment that very clearly requires institutional separation not state-mandated atheism.
The partial birth abortion ban ruling is a return to common-sense constitutional jurisprudence. While we continue to argue about the constitutional status of abortion, the Supreme Court has ruled that abortion isn't the formative governing principle it has become. Regulation is possible and the abortion-industrial complex simply cannot ignore the law anymore. The Court has finally moved back towards a more sane conception of rights and that is a tremendous victory.
John Bambenek is the Assistant Politics Editor for BC Magazine and is an academic professional for the University of Illinois. He is a syndicated columnist who blogs at Part-Time Pundit and the executive director of The Tumaini Foundation which helps AIDS orphans and other children in Tanzania to get an education.He is the current owner of BlogSoldiers, a blog-only traffic exchange.
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