Scott Tibbs
December 4th, 2005

Back to Opinion columns.

Supreme Court mock trial

Nine attorneys from around the state participated in a mock trial tonight on the constitutionality of the federal ban on partial birth abortion. It was quite an interesting presentation. The "supreme Court" came back 5-4 for the ban, while the audience vote was (if I recall correctly) 26-11 to overturn the ban.

I was one of those 11. Both sides presented their arguments, and the case boiled down to whether Congress is permitted to pass such a ban without a "health" exception. Congress conducted hearings on the matter over several years and made a finding of fact that partial birth abortion (clinically known as "dilation & extraction") is never needed to protect the health of the mother. A minority of doctors disagrees, and the Supreme Court is considering whether to hear the case.

There was disagreement on the "court" and between the advocates for each side as to what is the proper forum for deciding this issue: the Supreme Court or Congress. There was a good point made that the Supreme Court is unelected, while Congress is accountable to voters every two years. If we do not like a Congressional decision, we can make changes. We cannot make changes (not directly anyway) to the Supreme Court.

Some pro-lifers argue that Congress (or state legislatures) should be deciding the issue, but I disagree. Abortion, like slavery, needs to be settled constitutional law. Unborn children need to have the unequivocal protection and status as persons. Ideally, this should be codified in state law. If the states will not prohibit murder of the unborn, the federal government has no choice but to step in, as it did in banning slavery.

One of the justices made a very interesting point that women tend to be more pro-life than men, and that women without college degrees tend to be more pro-life than educated (or, as he said, "elite") women. His point (which offended some in the audience) was that there is a greater "opportunity cost" to a pregnancy for a more educated woman with a career. This makes sense. It also makes sense that men would be more pro-abortion than women, because abortion frees men from the responsibility of being a father. (See related article: Choice for men?)

Some feminists held pr-abortion signs before the event and at least one sign that read "save the court". Reversing Roe v. Wade will not end abortion, as state legislatures would still have to pass laws against it. Some will, and some will not. Of the states that restrict abortion, some will be more strict than others. Even so, abortion rights advocates know they are on the defensive, especially as people become more educated on abortion and fetal development.

It is informative that some pro-abortion advocates oppose any compromise, even bans on procedures as heinous as PBA. I think they understand that once you establish protections for unborn life, the whole house of cards is in danger of collapsing. As one justice on the mock court pointed out, viability (a standard established by Roe for when government can limit or ban abortion) is getting earlier in the pregnancy thanks to advances in medical technology. Once you establish a line where unborn life deserved protection, what about babies who are a few days younger than that point? What about a week? Two weeks?

This was a good event, but I was disappointed in some of the pro-abortion advocates in the audience speaking form their seats. This was supposed to be a more dignified and civilized discussion, but it began to degenerate when they decided not to observe rules of order. It was quite civil overall, but could have been better.