by Diane Rufino
In March, the Supreme Court heard oral arguments for Whole Women’s Health v. Hellerstedt, the biggest abortion case in decades. The question before the court addressed the permissible or impermissible obstacles to a woman’s right to an abortion – or more correctly put: to abort and end the life of the fetus growing inside her. This was the question that faced the Supreme Court for the first time in the landmark case, Planned Parenthood of Southeastern Pennsylvania v. Casey, which was decided in 1992.
The Pennsylvania legislature amended its abortion law in 1988 and 1989. Among the new provisions, the law required informed consent and a 24 hour waiting period prior to the procedure. A minor seeking an abortion required the consent of one parent (the law allows for a judicial bypass procedure). A married woman seeking an abortion had to indicate that she notified her husband of her intention to abort the fetus. These provisions were challenged by several abortion clinics and physicians. A federal appeals court upheld all the provisions except for the husband notification requirement. An appeal was made to the Supreme Court. In fleshing out the scope ofRoe v. Wade, the Court addressed this question: Can a state require women who want an abortion to obtain informed consent, wait 24 hours, and, if minors, obtain parental consent, without violating their right to abortions as guaranteed by Roe?
In a bitter, 5-to-4 decision, the Court again reaffirmed Roe, but it upheld most of the Pennsylvania provisions. For the first time, the justices imposed a new standard to determine the validity of laws restricting abortions. The new standard asks whether a state abortion regulation has the purpose or effect of imposing an “undue burden,” which is defined as a “substantial obstacle in the path of a woman seeking an abortion before the fetus attains viability.” Under this standard, the only provision to fail the undue-burden test was the husband notification requirement. The opinion for the Court was unique: It was crafted and authored by three justices. If you have any question what Judicial Activism looks like, this was it.
The case Whole Women’s Health v. Hellerstedt addressed a statue passed by the Texas legislature in 2013 – House Bill 2. House Bill 2 (HB2) required, among other things, that doctors performing the abortions have admitting privileges at local hospitals and that clinics meet the standards for ambulatory surgical centers (ASC), such as wider hallways, specifically sized “operating” rooms and other medically unnecessary building code rules — restrictions that have led clinics across the state to close. Texas clinic owner Amy Hagstrom Miller sued the state of Texas over the bill.
The justices asked such questions as what is the necessity of such a law and what exactly is its purpose, whether a woman seeking an abortion is presented with an undue burden by having to travel a bit further for the procedure if it means that the procedure is safer and the experience is better. Liberal Justice Ruth Bader Ginsberg, a staunch defender of the unfettered access to an abortion and the unfettered right of a woman to control her fertility and reproduction, asked: “What is the benefit of having to go to an ambulatory surgical center to take two pills?” She was questioning the medical necessity of the law.
On June 27, the Supreme Court handed down its decision. In a 5-3 split of the justices, the Court concluded that the provisions of HB2 do not offer medical benefits sufficient to justify the burdens they place on a woman’s access to an abortion. Each provision places a substantial obstacle in the path of women seeking an abortion and therefore acts as an impermissible – unconstitutional – undue burden on abortion rights. [Decision at: http://www.supremecourt.gov/opinions/15pdf/15-274_p8k0.pdf%5D
Unfortunately, the debate among the Justices and the decision itself was likely diminished by the death of Justice Antonin Scalia in February.
In his article “SCOTUS and Abortion: Three Failures and Opportunities for the Pro-Life Movement” (July 1, 2016), Harvard Law student Josh Craddock writes: “There comes a time where gross disregard for human life and for our constitutional order should stir us from docile obedience and impel us to resistance.”
In his article, Craddock criticizes the Supreme Court’s decision in Whole Woman’s Health v. Hellerstedt and explains how it exposes three failures and opportunities for the pro-life movement.
With respect to the failures and opportunities, he writes:
First, a pro-life strategy of compromise-rather than principle-has failed to convince the public or the courts. This offers the opportunity to refocus our efforts on the ultimate goal of the pro-life movement. Second, Republican judicial nominations have failed to overturn unconstitutional pro-abortion precedents and have even contributed to them. This offers the opportunity to eschew blind partisanship and to create constructive social tension that prompts political change. And third, our constitutional system has failed to constrain the judiciary. This offers the opportunity for lesser magistrates to resist unjust edicts.
An honest assessment of these failures and opportunities should convince those who are committed to the pro-life cause that the time has come to stop compromising. We must demand that our political leaders end the legally sanctioned killing of unborn children.
A Strategy of Compromise Has Failed —
The Hellerstedt decision reaffirmed that any significant impediment to abortion will be struck down under the existing judicial regime, even regulations designed to keep abortion “safe, legal, and rare” (a goal that has been embarrassingly adopted by many pro-life leaders). Such regulations, even if upheld, merely serve to sanitize abortion in the public eye. “At least there are no more Gosnells,” the well-intentioned public might say, as the local abortionist with hospital admitting privileges commits the same atrocities legally in a regulated clinic.
Those who are serious about ending abortion need to acknowledge that laboring within the confines of Casey is futile. Hellerstedt proves that approach will never achieve abolition. We cannot satisfy ourselves with petty regulations on abortion that trim the abortion weed while strengthening its root.
Instead, we should seize the opportunity to smash the existing legal paradigm by transforming the cultural and political landscape. The personhood movement is one such example. Traditional wisdom (and Gallup polling) suggested that only 15 to 20 percent of Americans would support a total abortion ban, but more than twice that many actually voted in various states to recognize the personhood of the preborn and ban abortion. In 2006, 44 percent of South Dakota voters supported a total abortion ban. In 2011, 42 percent of Mississippians voted for personhood and against abortion in all cases. And in 2014, 36 percent of Colorado voters supported an initiative to criminalize all fetal homicide, without exceptions for abortion. This is, of course, not the only strategy to end abortion. But it is illustrative of the bold, principled tactics and messaging that will be required to do so.
Instead of relying on vague language about women’s health and safety as they seek to kill their children or on the argument that some preborn children feel pain, we need to refocus the pro-life message on the inherent dignity of the human person from conception to natural death. We must take active steps to protect preborn children by love and by law, without exception or compromise.
Republican Judicial Nominations Have Failed —
Justice Kennedy, reprising his role from Casey, joined the Hellerstedt opinion in favor of more expansive abortion access. That shouldn’t surprise us. In 2007, he authored the abortion procedure manual known as Gonzales v. Carhart, which advised abortionists to find “less shocking methods to abort the fetus” and suggested various dismemberment techniques that would skirt the Partial Birth Abortion Ban.
We shouldn’t be scammed and scared into voting Republican in order to get conservative Supreme Court justices. While it’s true that the three justices who would return the question of abortion to the voters have been appointed by Republican presidents, it’s also true that Republicans have appointed even more justices who think the Constitution requires abortion. Think of Stevens, Souter, O’Connor, and Kennedy. All three justices responsible for the plurality opinion in Casey were appointed by Republican presidents. Color me an extreme skeptic that a President Trump is going to do any better.
Instead of putting our hope in the Republican Party and the Supreme Court, we have the opportunity to increase social tension over child-killing. Human rights movements have the tendency of making opinions and policies irrelevant, as the world’s repudiation of slavery over a century ago makes clear. America did not confront the brutality of slavery until abolitionists like William Lloyd Garrison made it inescapable.
Garrison considered constructive social tension to be a vital element of cultural and legal reform. As a non-violent agitator, Garrison was able to clarify the perils of wrong or weak choices in a way that many politicians could not. He pushed the well-intentioned toward firmer statements and action by making complacency unbearable. Garrison understood that abolition had to accomplish a moral revolution before it could effect a political one, for “only an aroused public conscience could persuade legislators to withdraw protection from slavery.”
Following Garrison’s example, we must ensure that there can be no child-killing with tranquility. We must be unrelenting, so that purportedly pro-life candidates, pastors, priests, and persons of influence cannot comfortably coexist with legalized abortion. We must not retreat from voting and politics-far from it. Instead, we should engage with politics in a way that demands principled leadership, especially from Republican politicians. If they won’t provide it, we shouldn’t provide our votes. When the people lead, the leaders will follow.
Our Constitutional System Has Failed —
We are no longer a nation governed by laws rather than by men. As Justice Thomas said in his Hellerstedt dissent (quoting Justice Scalia), “we have passed the point where ‘law,’ properly speaking, has any further application.” The way in which the Hellerstedt majority mangled the law to achieve its preferred outcome was transparently contrived and deliberately dishonest.
The Supreme Court has long since undermined its own legitimacy as a fair and neutral arbiter. Last year’s ruling in Obergefell, as well as so many others, have exposed the Court as nothing more than another political branch-a robed oligarchy that has unconstitutionally aggrandized itself through the false doctrine of judicial supremacy and cloaked its unconstrained willfulness in the language of law.
Our Founding Fathers understood that judicial supremacy was incompatible with the preservation of self-government. To “consider the judges as the ultimate arbiters of all constitutional questions,” Thomas Jefferson wrote, would be “a very dangerous doctrine indeed, and one which would place us under the despotism of an oligarchy.” When judicial supremacy is combined with an utter disregard for our constitutional text, the “supreme law of the land” becomes nothing more than the fiat of five lawyers.
This naked power grab presents elected and appointed leaders with an opportunity to disregard and resist the Court’s unjust and illegitimate rulings. Although we ought not lightly upend our judicial system, there comes a time when gross disregard for human life and for our constitutional order should stir us from docile obedience and impel us to resistance.
Just as Lincoln denied the force of the Dred Scott decision to settle the question of black citizenship, so too must state governors and other officials who have sworn oaths to uphold our Constitution deny the force of the Supreme Court opinions to settle the question of preborn humanity. Governors in particular should reassert the rightful status of their states in our federal system and take action to protect every innocent human being in their jurisdictions. We should encourage officials to stand against the judiciary’s unlawful and unjust decrees and rally behind those who do.
*** Josh Craddock is a student at Harvard Law School. He formerly served as the vice president of Personhood USA.
Reference: Josh Craddock, “SCOTUS and Abortion: Three Failures and Opportunities for the Pro-Life Movement,” The Witherspoon Institute, The Public Discourse, July 1, 2016. http://www.thepublicdiscourse.com/2016/07/17284/?utm_source=The+Witherspoon+Institute&utm_campaign=f20712aec5-RSS_EMAIL_CAMPAIGN&utm_medium=email&utm_term=0_15ce6af37b-f20712aec5-84177661