George:

I am not sure that I follow all of what Paul Goldman is saying (I think you or he may have garbled something in the paragraph that begins "At
the same time..."), but assuming that I do, I need to respond.

Paul refers to some Chuck Robb statement (he doesn't give a cite or show it as a quote) that he is "against any restrictions on a woman's right
to choose." That is the sort of statement that sounds immediately like it desperately needs context, which Paul does not give.

If Chuck had said that he was "against any of the Virginia Republican Party restrictions on a woman's right to choose," or "against any of George Allen's proposed restrictions on a woman's right to choose," I suspect Paul Goldman would have to agree that Chuck's position is exactly in the mainstream of both political opinion and legal decisions.

Paul refers, rather confusingly, to the Nebraska case, Stenberg v. Carhart, decided in June, 2000. That case rejected the Nebraska partial-birth abortion statute, for two reasons:

1. The statute contains no exception for "necessary for the health of the mother," consistently required by caselaw since Roe v. Wade. Dr. Carhart testified that in the 10 to 20 partial-birth abortions (called "D&X" for "dilation and extraction") that he did in a typical year, he did them because that method of abortion was safer than the more usual "D&E" (for "dilation and evacuation") method.

2. "Using this law some present prosecutors and future Attorneys General may choose to pursue physicians who use D&E procedures, the most commonly used method for performing previability second trimester abortions. All those who perform abortion procedures using that method must fear prosecution, conviction, and imprisonment. The result is an undue burden upon a woman' s right to make an abortion decision. We must consequently find the statute unconstitutional."

The language of the Virginia statute (Va. Code sec. 18.2-74.2) -- passed by the Republicans, opposed by NARAL (among others) -- is just as vague, and therefore just as unconstitutional, as the Nebraska statute. If anyone wants to see all of the opinions in that case, here is the link: http://www.supremecourtus.gov/opinions/99pdf/99-830.pdf

Paul Goldman claims that "one can be against any restrictions on a woman's right to choose and for partial birth abortion bans...if you mean the right to choose as defined in Roe v. Wade."

The first problem with Paul's claim is that the phrase "right to choose" is not used in Roe v. Wade, and is certainly not defined there. The meat of what the Court held, at 410 U.S. 113 at 164-165, is the following:

1. In the first trimester, "the abortion decision and its effectuation must be left to the medical judgment of the pregnant woman's attending physician."

2. After the first trimester, "the State, in promoting its interest in the health of the mother, may, if it chooses, regulate the abortion procedure in ways that are reasonably related to maternal health."

3. "For the stage subsequent to viability, the State in promoting its interest in the potentiality of human life may, if it chooses, regulate, and even proscribe, abortion except where it is necessary, in appropriate medical judgment, for the preservation of the life and health of the mother."

No subsequent Supreme Court decision has used the phrase "woman's right to choose" either -- that is a politician's circumlocution to avoid using the word "abortion."

Paul cites Justice O'Connor's opinion in Stenberg as support for the notion that one can be "against any restrictions on a woman's right to choose and for partial birth abortion bans."

Did Paul not notice that Justice O'Connor voted to invalidate Nebraska's partial birth abortion ban?

Chuck Robb is a lawyer, and when he was in private practice he was a good one. As a public servant, he has shown a lawyer's familiarity with caselaw. I assume that he has read Roe v. Wade and its progeny. He seems to be standing behind Roe v. Wade, Stenberg v. Carhart, and the other decisions that have struck down the attempts by others -- mainly Republicans, though not exclusively -- to place "restrictions on a woman's right to choose."

Abortion is a far more complex issue legally than politicians want to deal with. Roe v. Wade was brought alleging that there was a right of privacy at stake. The Court in Roe said NO -- we are not saying that there is a right of privacy. Christian Coalition folks want to turn Roe v. Wade into a sign of the moral degradation of our time, that there should be a privacy right to kill babies.

Roe v. Wade is really about deciding when government has a right to make a decision and when the woman and her doctor have the right to make that decision. The Court did not explicitly hold that a fetus is or is not a "life"; the Court said, "We need not resolve the difficult question of when life begins. When those trained in the respective disciplines of medicine, philosophy, and theology are unable to arrive at any consensus, the judiciary, at this point in the development of man's knowledge, is not in a position to speculate as to the answer."

The Court in Roe v. Wade held that the government has a right to protect a fetus as a "potential life," and that that right to protect a fetus grows generally as the fetus approaches viability, so that a fetus that is capable of living outside the womb may be aborted only if there are compelling reasons -- such as the need to protect the life of the mother.

In the first trimester, says the Court, the government has absolutely no right to make a decision about appropriate medical care for a pregnant mother.

In the second trimester, the government can regulate the abortion procedure only in the interest of the woman's health.

In the third trimester, or after viability, only the "life or the health of the mother" can justify an abortion.

Roe v. Wade held that there are certain decisions that a government cannot make for a woman. It restricts the right of the government to intrude into personal matters. It is justifiable, in the long run, as an expression of the sense that there are certain decisions that government has no legitimate interest in making.

That is what Chuck Robb believes. That is how he has voted.

It sounds to me as though Chuck and Justice O'Connor are in agreement on this one.

And Justice O'Connor is in agreement with the other 4 members of the majority in Stenberg, who simply reaffirmed 27 years of precedent since Roe v. Wade. As Justice Stevens wrote in Stenberg,

During the past 27 years, the central holding of Roe v. Wade, 410 U. S. 113 (1973), has been endorsed by all but 4 of the 17 Justices who have addressed the issue.

Chuck Robb is right there with the 13 of 17 Justices who have served on the bench in the last 27 years in agreeing with the core holding of Roe v. Wade. George Allen stands with the 4 who are outside the mainstream.

So Paul, give Chuck a break on this one.

Lloyd Snook (electronic mail, October 22, 2000).