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RUSH: Here’s the way the AP reported the story about 10:20 this morning: ‘The Supreme Court upheld the nationwide ban on a controversial abortion procedure Wednesday, handing abortion opponents the long-awaited victory they expected from a more conservative bench. The 5-4 ruling said the partial-birth abortion ban that Congress passed and President Bush signed into law in 2003, does not violate a woman’s constitutional right to an abortion.’ Now, I’ve been on the phone this morning with some legal beagles who have read the decision (it’s seventy pages) because I wanted to be able to get this as correct as possible, because things are going to happen here. You’re going to have people on the right, understandably, celebratory. You’re going to have the left going nuts. The wording of that AP story is a veritable call to arms for the left to get in gear, here. The majority decision was written by Anthony Kennedy — which I want you to be ready for this, too. The Drive-By Media and the left are going to start pummeling Anthony Kennedy because he made it clear in this decision that his mind can be changed. So they’re going to start working on him.

We’re going to have the media talking about, ‘Oh, no! Bush has created this right-wing court here, and this extremist, right-wing court.’ Keep in mind that neither Roberts nor Alito wrote this decision. Anthony Kennedy did, and it was 5 to 4. I’ve talked to a bunch of people on all sides of this today. What I’m going to offer you here are my conclusions and my analysis. There’s no question it’s a victory, but it’s a narrow one. It is an important victory, but it’s a narrow one, both in terms of the 5 to 4 vote and the reasoning. Now, here’s what happened. The court struck down a partial-birth abortion ban that was passed by the state of Nebraska. The majority opinion, which was written by Justice Kennedy, did not reverse itself on that decision. What the majority opinion said is that the federal law banning partial-birth abortion was consistent with the court’s position in the earlier decision. Now, what does this mean? Well, to put it simply, it means that the federal law prohibits a doctor from knowingly performing a partial-birth abortion that is not necessary to save the life of the mother.

Now, this is slightly different from the so-called health exception in that the procedure can only be performed to save her life. This is different from that. Federal law now prohibits a doctor from knowingly performing a partial-birth abortion that’s not necessary to save the life of the mother. It’s not an overarching victory — and I’m not trying to be negative here, folks. It’s important, but it’s not overarching. It’s not a landmark decision, and it is not sweeping. It’s a small victory, and, as the liberals would say about gun control: ‘Hey, if it saves even one life, it’s worth it,’ right? So we can turn around and use their own philosophy on them on this. But they’re going to go nuts. The left is going to go nuts here and describe this as the beginning of the end. They’re going to fund-raise off of this. They’re going to smear Justice Kennedy, making him pay a PR price for this decision so that he doesn’t dare do anything like this again, and they’re going to try to cause all kinds of commotion. They have a dissenting opinion written by Ruth Bader Ginsburg that makes this out to be the end of the republic. This is just horrible! The Constitution may have just been shredded here!

This is going to gin ’em up. This is going to light a fire underneath them. They’re going to be out there fundraising and doing all kind of things. They’re going to start working on Anthony Kennedy, too, because they think that he will succumb to PR pressure on this. Now, there’s an additional and important point in this decision. Justice Kennedy in the majority opinion left the door open to all kinds of challenges on this. He said that the challenges before the court in this case ‘was a facial challenge,’ meaning it was simply a lawsuit challenging the federal statute’s constitutionality, and the court has ruled 5 to 4 that the federal statute is constitutional. Now, some people are not happy that this didn’t go far enough, and when they learned what the decision was about, they were a little disappointed (even though happy at the same time) because it wasn’t sweeping. But Justice Scalia, in a brilliant opinion on an abortion case (it must have been in the early nineties), said and warned everybody. This is the way he wrote it: ‘The mansion that is abortion rights law is going to have to be dismantled doorjamb by doorjamb,’ meaning if you look at abortion law as a giant house, we’re not going to be able to take the wrecking crew in there and just level the house. We’re going to have to take it apart piece by piece.

This decision, I think, would qualify under what his reasoning was back then. Now, even though the court has ruled 5 to 4 that the federal statute was constitutional, if a case comes before the court and it is shown perhaps that a doctor felt he had to perform a partial-birth abortion outside the limits of the statute, then the court might hear that case which leaves the door open to Kennedy to change his mind, perhaps siding with the four liberals on the court. I’m just anticipating what could happen down the road. The bottom line here in the way the decision is written is that it is not etched in stone, meaning the door may not have been slammed shut on partial-birth abortion. There’s still the exemption for the mother’s health. Again, if a case were to come before the court — and you know they would hear it — and in that case it is shown, perhaps, a doctor felt he had to perform a partial-birth abortion outside the limits of the statute, then the court might hear the case. They’ve said this in their opinion, which would leave the door open to Kennedy perhaps siding with the four liberals on the court down the road, which you have to consider given we know what’s going to happen to him. The Washington Post and the New York Times are going to attack him.

Remember, now, Roberts nor Alito nor Scalia nor Thomas wrote the opinion. They concurred with their own little additions, but this majority opinion was authored by Kennedy. So he’s going to be the target. We know these challenges are going to come. They’ll be manufactured in order to get this decision reversed. Now, speaking of Justice Thomas and Justice Scalia, Justice Thomas added a short concurring opinion, saying essentially that the court has been wrong about involving itself in these decisions from the beginning, and he said we need to throw out all these decisions. There’s no constitutional basis for the role we are playing. (That’s my words. I’m translating from the legalese in Justice Thomas’ opinion.) He said this whole thing is crazy because we have no role in this anyway. We have no constitutional role. We shouldn’t have been involving ourselves in these decisions from the start, and we need to throw out all these decisions. Now, that would have been a sweeping opinion, but this case didn’t provide for that kind of sweeping opinion. Now, you’re going to read a lot of things out there today and you’re going to hear a lot of commentary. You’re going to hear some people say, ‘Oh, big time, significant victory, sweeping victory.’ Others are going to say, ‘Ah, it’s narrow.’

I think it is narrow, but it’s a crucially important ruling. Now, the left (and this has already begun) will declare this a sweeping loss. They’re not going to call this narrow. This is Armageddon! This is the Constitution being shredded. That’s what they’re going to say, and they’re doing that. They’ll do that to keep their extremists hyped up, and in this case I would urge everybody not to fall for that, because a contrary ruling could have been a disaster. Striking down the federal law would have been a disaster from our point of view. As far as these people are concerned, when they lose an inch of the ten miles they have gained on this, this is a sweeping, sweeping disaster to them — and that’s how they are going to play it. But you have to keep in mind that this is a narrow ruling that came from the Supreme Court today based on precedent. This is not a fresh review of the constitutional issues of abortion. That is not what this is, and the door is left open for what they called ‘as-applied challenge.’

What that means is that Justice Kennedy in his majority opinion is saying he’s open to changing his mind, that he’s open to being persuaded that he’s wrong in this. There’s no nail in the coffin here. (Pardon the analogy.) There’s no sweeping, constitutional strike-down here of the whole constitutional concept of Roe vs. Wade. I have to emphasize again and again that neither Justice Roberts nor Alito wrote the decision. Justice Kennedy did. So that’s going to lead — even though that’s the case, you’re going to hear — ‘Bush has created this right-wing court and we gotta do something about this,’ and all that’s happened so far is that Bush replaced one conservative with another and one moderate with a conservative, but still, without Kennedy’s vote, there would be no majority here. You can talk about this being a right-wing court all you want, but really what this adds up to is that Kennedy is the new Justice O’Connor that everybody is aiming for when it comes to the decisive 5 to 4 vote. So this is not a conservative court yet.

Who knows what the vacancy opportunities might be before Bush will leave office, and if that happens — if there is a vacancy, if one of the justices retires before Bush leaves office — this decision today (laughs) we’re going to be transported back to the eighties and the early nineties on the intensity of this, and I guarantee you that the left will personally destroy — the Democrats on the Senate Judiciary Committee, will set out to destroy — not just the character but the reputation of whatever conservative nominee that Bush puts forward. We don’t know how many other nominees out there are of the caliber of Roberts in the sense that they can withstand it. There are some, obviously. Targeting them, finding them and getting them nominated would be the next thing. But you need a vacancy for that, and the libs will know this. Without Kennedy’s vote there would be no majority here and so he’s the guy that they’re going to be aiming for. We’ll keep a sharp eye on this. There’s going to be newspaper articles questioning: ‘What has happened to Justice Kennedy?’ There’ll be Washington Post Style section pieces on him. ‘Has he been on the cocktail circuit enough? Is he losing touch? Has he maybe got too many conservative clerks?’ Any number of things are going to happen. The liberals will pummel him in order to force him into line.


RUSH: Folks, I don’t want to depress you out there. I know some people say, ‘Whoa, partial-birth abortion has been banned!’ Nah. A federal statute has been upheld. There are still exemptions for it. But there are some bright sides in this, in addition to that fact. It’s a narrow victory. I’m just trying to be realistic here. This is an example. One thing that did happen here is the court applied the law instead of trying to make it up or impose an agenda from the bench. Now, the liberals on the bench did that, but Anthony Kennedy didn’t join them. They simply looked at the federal statute, and they found it constitutional. They did not consult foreign law. They didn’t do any of the other things that they’re known for. They just dealt with the issue before them. But in the process of doing so, Justice Kennedy said (paraphrased), ‘Well, if there are challenges to this, we opened the door for that. We could be persuaded to change our minds.’ Those are my words, as I read the opinion. In the process, you could say, ‘A federal statute is put together by virtue of the elected representatives of the people, members of the Congress and the Senate, and the representatives of the people passed the partial-birth abortion ban.’

This is another thing that makes it important to know who wins elections and therefore who runs Congress. So the court in upholding the federal statute here, left the issue to be decided by the people through their elected representatives. They allowed the democratic process to work here. All these are positive signs, because the court’s proper role is to apply the law, not make it up from the bench and leave policy issues to the people through the democratic process. A couple of other thoughts. You can tell that the decision was a favorable one by looking at all the right people who are howling about this. There’s a silver lining in this to the abortionists, and you have to admit that. The court overtly upheld the right to an abortion in striking down the absolute worst form of exercising it. They made a point here of saying, ‘We’re not touching Roe vs. Wade with it. We’re not talking about the constitutional issue. We’re dealing with one federal statute.’ This may be the way this problem’s going to have to be dealt with as Justice Scalia said, ‘Tear down the house of abortion law doorjamb by doorjamb.’ You just continue to restrict it in little ways that add up, eventually, and in these ways that you restrict it, you err on the side of life until these abortions are actually very rare.

We get news of medical breakthroughs continuously that are pushing the viability date back into fewer and fewer weeks in utero. All kinds of medical advances are taking place. It used to be that before Week X, there was no chance of a baby surviving outside the womb, but that Week X is continually moving back closer to the point of conception. Now, that’s going to keep happening as well, and of course the way you look at this will depend upon which classical view you take to the problem. If the original ruling, Roe vs. Wade, is Pandora’s Box, then this is the way to go. If it’s a Gordian knot, then you need to cut through it all with a ruling barring abortion except in those very rare cases where the life of the mother is threatened, this sort of thing. There’s enough in this decision that both sides are going to feel like they got screwed, the left more than us. Some on the right are going to think, ‘Ah, it could have been more,’ but you have to understand. We were talking yesterday about the gun control inertia that was created after the Virginia Tech massacre. You have to understand that when it comes to the abortion issue, to the left it’s a political issue. It’s pure political power. To those of us on the right, it is an issue of life. It is an issue of morality.

That’s not the slightest bit of concern to people on the left, and it never has been. They may say, ‘The right to choose is a moral issue,’ but you can knock that one out of the park with a fungo. ‘Well, we can’t tell women what to do with their bodies.’ Well, we do all the time. They can’t transport drugs in their bodies. There are laws against prostitution and this sort of thing. I’m just saying to them it’s not a moral issue at all. I’m talking about to the radical fringe leaders of this movement. It has nothing to do about morality, right and wrong. It’s a pure political issue oriented toward power, and to those of us on the right, of course, it is a moral issue. It’s a life issue. So where do we compromise on this? ‘Well, we have to get together and compromise, Rush. We gotta get rid of this partisanship all over the place. We gotta compromise on the war.’ Okay, how do you compromise between victory and defeat? Where’s the compromise there? The people who want defeat, will they simply agree to postpone it for a couple years? Where’s the meeting of the minds on that? It’s the same thing here with Life and Abortion. Where do you compromise on life and death? I don’t know where the compromise is, and that’s why it’s a shame this has become a court issue anyway.

It’s a shame that nine people wearing black robes in 1973 decided to usurp all kinds of democratic power from the American people and proclaim this. You go to societies where the people have determined the laws on abortion via their elected representatives, and you don’t find nearly as roiled a society as ours is, because this decision — Roe vs. Wade — was not something decided by the elected representatives of the people and therefore it’s not decided in a democratic fashion. This was nine people (pounds the desk) pounding the gavel and saying, ‘This is the law and this is what you have to do and this is the way it is going to be,’ and it’s really never been settled in terms of the democratic constructs that we all live by, and that’s what Justice Scalia was saying. We don’t have any business in any of this. We don’t have any business in any of this, from Roe vs. Wade forward. But it is what it is, and so you deal with it as it is, and this whole notion of compromise and, ‘Can’t we all get along on this?’ I just don’t see where that ground is. I don’t know where the people who believe in life compromise with the people who don’t think it’s death. It seems to me, this is something that’s going to be continually fought over until it ultimately is decided by the people.


RUSH: Let me go to Eric in Cleveland to get started on the phones. Nice to have you, sir. Welcome to the EIB Network.

CALLER: Thanks, Rush. It’s a great honor.

RUSH: You bet.

CALLER: I was just wondering with this latest decision, if by osmosis or association the new justices are having some effect on the court after all.

RUSH: Well, you know, the reason I took your call is because I know something about this, and the odds of that are rare. The odds of any one justice influencing another in any way are very, very difficult. Let me tell you what happens after the oral arguments are made in any court case, in any Supreme Court case, and the briefs have been read and the clerks have made their recommendations. The justices assemble in their justice boardroom, and they vote. I once asked a Supreme Court justice (whose name I will not identify. He is currently on the court), ‘Well, do you try to persuade the justices who disagree with you?’ He said, ‘No. There’s no persuasion that goes on in these things,’ and I was stunned, because I thought you go in there as a lawyer, as a judge, and you believe in what you believe, and you try to twist arms, and he said, ‘No, no, no, no! It doesn’t happen. I’m not going to change their minds,’ he said. He was incredulous that I would ask the question. ‘I’m not going to change their minds.’ He said, ‘Some justices on the same side of the aisle will get together and talk about things and so forth, or the same side of the case, whatever the case is, but no. I’m not going to change their minds anyway.’

I was stunned. There’s no debate that goes on in these things. They get together with themselves in the court and the clerks and so forth. There may be exceptions to this, but the general rule is, they just submit their votes and that’s it. After that, it’s all said and done, and then after the votes are tallied the chief assigns who’s going to write the opinions on either side, and that’s that. Now, if you’re saying by virtue of Justice Roberts’ presence and in the daily congeniality and collegiality that exists between justices in the court wandering through the halls of the building and this sort of thing, I wouldn’t put too much stock in that. When have you ever seen evidence of it, especially in the last four or five years or even longer? When’s the last time you had a case that was perfectly definable by a line that had left and right on it? When’s the last time you saw one of the wacko conservatives (supposedly) joining with the liberals on the court or vice-versa? When’s the last time you saw one of the wacko liberals join with the conservatives? It’s very, very, very, very rare. That’s why Kennedy is now the focus.

I just saw it at MSNBC. They announced the decision up there, and this giant picture of Anthony Kennedy filled up the screen. I’m telling you, he’s going to be the target now of the PR efforts mounted by the left and their house organs in the New York Times and the Washington Post. This is a Kennedy decision. It’s not a Supreme Court decision. The court aligned as it was expected. You have four libs, you have four conservatives, and you have the ‘swing vote.’ That used to be Justice O’Connor. Now Kennedy, in this case, at least, has joined the so-called conservatives on the court, but there’s not a whole lot of persuading that is even attempted. I think so many people — and I had it, too. So many people have a misconception of what goes on inside the Supreme Court. You know, they hold oral arguments, but like oral arguments in almost every level of the judicial system, they’re irrelevant. Well, I can’t say they’re irrelevant, but they don’t have the impact that people think they do. There just isn’t that much persuading. These guys are all mental giants in their own minds and in their own right. The interaction between them, when it comes to persuading each other… The Supreme Court’s not a debating society. Let me just put it that way. That’s not what it is. It may have been at some point, but as it is currently constituted, it isn’t.


RUSH: All right, Pat in Pasadena, Texas, I’m glad you called. Welcome to the EIB Network.

CALLER: Hi. Thanks, Rush. Dittos from Texas. Back to the Supreme Court decision, I wanted to ask you about the religious and political implications since all five justices supporting a law banning partial-birth abortion are Catholic.

RUSH: Well, you’re asking me if the Drive-By Media and the left will focus in on their religion?

CALLER: Absolutely — and, we have an election coming up in ’08, Giuliani is Catholic, you know?

RUSH: Look, Catholicism and Christianity, you can make fun of them and you can rip them and you can criticize them all day long. You might have a point here, although in this case, I think the focal point is going to be Justice Kennedy. I said this in the first hour, and this is what I want you all to be on the lookout for. Justice Kennedy, in his decision, let it be known he could be persuaded to change his mind, that he might be wrong here. You have the four so-called conservatives, the four so-called liberals, and here was Justice Kennedy, the swing vote. That’s who they’re going to work on. They’re going to mount a PR campaign on, ‘What’s happened to Justice Kennedy?’ Because they think he’ll respond to it. They think Justice Kennedy is somebody who will want fawning attention from the media and Democrats in Washington and in New York. The idea that they might profile or criticize the religion? Hell, that comes up in hearings! It comes up in the hearings of these Supreme Court nominees. Chuck Schumer and Durbin have been out there, ‘You can’t by your religious views to the court, you understand that?’ That really isn’t new. The way this will all manifest itself, Pat, is if there is a vacancy and a new nominee that Bush would put forward, you can look for all-out war, and nothing will be off the table in terms of ammo that will be used.


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