Hold the presses. I got this interesting comment on this post from one Bender Rodriguez:

The plain simple fact is that Alito voted in favor of partial birth abortion as a fundamental right. We don’t need to go any further than that. There can be and is no good excuse or reason for doing so. Ever. And there is no explaining it away.

Now, some will try to say that he was compelled to do it. In the face of all logic and simple human decency, and despite the fact that the oath he swore was to uphold the Constitution, which is more than Supreme Court precedent and which does not say that murder is a right, they say that he was forced to stand on the side of the butchers because the Supreme Court made him do it. Just like the judges in antebellum America were forcedto return fugitive slaves, just like judges in 1930s Germany were forced to sterilize Jews and send them to concentration camps, because a bunch of judges above them (who think themselves to be “the law,”) said so, notwithstanding the fact that all human decency cries out against it.

But the fact is that it is quite apparent that in Farmer he didn’t even try to distinguish the N.J. case from Stenberg. He made no attempt to find a way to uphold the N.J. partial birth abortion law. He even rejected a request that the N.J. state courts be allowed to interpret the N.J. law before he struck it down. He made no analysis of the issue at all — he simply summarily, casually, and coldly upheld partial birth abortion as a fundamental right.

And he certainly was not forced to rule that unborn “human beings” are not included within the meaning of “person” contained in the Fourteenth Amendment. The Whitman case had nothing to do with abortion, it was about wrongful death actions, which does not require application of abortion law, which is sui generis. Why the hell else do we permit murder charges for at attack on a pregnant woman that results in the death of the unborn child

Somebody tell me this is not so. If Alito did not extend the definition of human being to the unborn (scientifically impossible) as a unique person (again, scientifically impossible – and provable in a court of law) then what did these fanatical anti-Miers folks just do to us?

There is no way we can allow anyone to justify any conclusions that separate the innocent young human individual from the innocent born human individual. The crux of abortion is facing the scientific facts with a moral (spiritually derived or otherwise) eye to the sanctity of life. Abortion destroys a unique human individual and must only be a process of last resort – not convenience.

Did we just get rolled by Redstate, NRO and ConfirmThem? In the zealotry to have the over riding say on this did we allow them to make the ultimate mistake here? I’ll do some checking a bit later – but we need to know if this is true.

UPDATE:

Here is the case decision – it will take me a while to get through this. Maybe later today.

UPDATE II:

Alito’s dissent is at the end – and yes, he did argue that precedence was the controlling factor.

ALITO, Circuit Judge, concurring in the judgment.

I do not join Judge Barry’s opinion, which was never necessary and is now obsolete. That opinion fails to discuss the one authority that dictates the result in this appeal, namely, the Supreme Court’s decision in Stenberg v. Carhart, 2000 WL 825889 (U.S. June 28, 2000).

Hmm… I do not recall Miers rationalizing why partial birth abortion (the birthing of a fetus/baby to kill it) could be a constitutional right. Definitely more later. This is why we do not need judicial theorists, we need common sense and compassionate people.

UPDATE III:

Just for consistency, if Miers had claimed that the NJ partial birth abortion law should have been struck down on precendent, what kind of vitriol would have erupted from the anti-Miers camp? Why was it so clear that Miers was a danger to conservative goals with a survey against abortion, and Alito is no problem at all with a decision for abortion??? And no, I am not simple minded about this. But simple tests are sometimes the first step in eliminating irrelevant paths to an answer.