Life Advocacy Briefing

November 8, 2021

Save ‘Hyde’ – and State-Level Protections
Conscience Rights Affirmed in Court / Stateside
Challenging the Texas Heartbeat Act
Is High Court Signaling Reticence on Texas Heartbeat Law?

Save ‘Hyde’ – and State-Level Protections

WE JOIN SEVERAL OTHER PRO-LIFE GROUPS IN ASKING Americans to contact their Members of Congress and home-state Senators to urge the retention of the Hyde Amendment in measures appropriating funds for the Dept. of Health & Human Services. The Life-protective language is missing in the versions currently pending in Congress. [Capitol switchboard: 1-202/224-3121]

A warning has come from National Review, what is more, reports Matt Lamb for LifeSiteNews, that Congress is considering “through separate legislation … overrid[ing] state-level prohibitions on the state portion of Medicaid being used to pay for abortions.”

March for Life Action has warned, reports Mr. Lamb, “‘A few months ago, pro-choice [sic] Democrats in the House of Representatives passed the most partisan appropriations bill in history, which was devastatingly stripped of all pro-life protections for the first time since 1976, including the Hyde Amendment. … This means that the House voted to force Americans to pay for abortions with their tax dollars … . Now, the possibility of your taxpayer dollars funding abortion hangs in the balance.’”

And this from the US Conference of Catholic Bishops, reported by Mr. Lamb: “‘The bills released by the Senate Appropriations chairman [in mid-October] represent a radical departure from the will of the American people and the principle of justice for all,’ Cardinal Timothy Dolan and Archbishop Joseph Naumann said in an Oct. 22 statement. ‘By proposing to eliminate the Hyde and Weldon Amendments, among other long-standing, bipartisan pro-life provisions, the Senate is staking out an extreme position of forcing taxpayers to pay for the taking of innocent human life and forcing healthcare providers to participate in this injustice. …

“‘We reiterate the fact that funding the destruction of innocent unborn human lives – and forcing people to participate – are grave abuses of human rights,’” the two Catholic leaders continued, quoted by LifeSiteNews. “‘We call on the Senate to prevent this injustice by passing appropriations bills that fully support and protect human dignity and the most vulnerable among us.’”


Conscience Rights Affirmed in Court

A PRO-LIFE NURSE WON HER WRONGFUL TERMINATION LAWSUIT in Illinois in late October, reports Jack Bingham for LifeSiteNews.

The ruling came in circuit court in Winnebago County, whose county seat is Rockford. The defendant was the county health department, which had fired the nurse in 2015, reports Mr. Bingham, “over her refusal to provide abortion and contraceptive services due to her religious beliefs. …

“The court determined,” notes LifeSiteNews, “that per the Illinois Health Care Right of Conscience Act, [nurse Sandra] Rojas had a right to keep her position while having her ‘honestly held’ pro-life beliefs accommodated.” She had “worked as a pediatric nurse for the [county health] department for 18 years prior to the 2015 installation,” writes Mr. Bingham, “of a new job requirement that compelled nurses to refer women to abortion facilities, help women obtain abortion-inducing drugs and aid them in accessing contraceptives.”



  • THE OHIO SENATE HAS PASSED a version of the Born-Alive Infant Protection Act, reports Matt Lamb for LifeSiteNews, that “would make ‘abortion manslaughter’ a first-degree felony, meaning that abortionists and nurses that fail to attempt to provide life-saving care to a baby that survives an abortion could face prison time. It also,” he notes, “allows the mother of the child to file a civil lawsuit for ‘wrongful death.’” The Ohio House of Representatives has yet to act on the measure. Noted a spokesman for Ohio Right to Life, quoted by Mr. Lamb: “‘This bill is incredibly important, because Ohio does not currently have a reporting requirement for the reporting of babies who survive botched abortions … so we have no way of knowing how many babies could be surviving botched abortions. … This bill actually requires that the Ohio Dept. of health report every time a baby survives a botched abortion and requires that a baby receives potentially life-saving care.’”

  • ILLINOIS IS THE FIRST STATE EVER TO HAVE ROLLED BACK a Parental Notice of Abortion law, according to a Guttmacher Institute report cited by NPR/IL reporter Maureen McKinney. The state’s vehemently pro-abortion governor, J.B. Pritzker (D), is expected to sign the repeal measure passed in the General Assembly’s abbreviated autumn session. The bill passed narrowly in both houses, with all Republicans in both houses voting “no” and all but a handful of Democrats voting “yes.” The repeal came despite an overwhelming appeal from citizens throughout the state, who bombarded the General Assembly with so many appeals the governor’s office claimed the volume of messages resulted from some sort of computer glitch. Said Amy Gehrke, executive director of Illinois Right to Life, quoted by Mrs. McKinney, “‘We’re talking about girls as young as 10 or 11 being taken for abortions without their parents knowing. We’re talking about the rights of Illinois parents being completely thwarted,’ she said. ‘The arguments to keep this law in place are so much stronger. There really is no excuse to repeal Parental Notice of Abortion.’” The NPR report also quotes Planned Parenthood of Illinois’s “reputation manager” Paula Thornton Greear, bragging, “‘Planned Parenthood of Illinois was instrumental in creating the legal [read: political] environment necessary to support Illinois’s progressive laws on the state as a safe haven for patients seeking abortion. We are now working toward expanding regional capacity in order to welcome more patients … . PPIL is poised to respond quickly, as legal circumstances change.’” [Translation: Planned Parenthood is determined to turn Illinois into an abortion mecca in the event the Supreme Court overturns Roe v. Wade.]



Challenging the Texas Heartbeat Act

Oct. 22, 2021 Washington Update commentary by Family Research Council blog author Joy Zavalick

             In the Biden Administration’s latest attack on the Texas Heartbeat Act (SB-8), the US Department of Justice (DOJ) asked the US Supreme Court to place a hold on the law until legal challenges have been heard. In addition to requesting the Supreme Court to vacate the Fifth Circuit’s stay of the district court’s preliminary injunction, the DOJ took the unusual step of filing a petition for writ of certiorari before judgment – that is, the DOJ asked the Supreme Court to rule on the issues before the Fifth Circuit. In its response, the State of Texas said the Supreme Court should not vacate the Fifth Circuit’s stay. But if the Supreme Court were to take the extraordinary step of deciding the substantive issue, Texas would ask that Roe and Casey be overturned.

             With the Court gearing up to hear oral arguments in the Dobbs v. Jackson Women’s Health Organization case (concerning Mississippi’s 15-week abortion ban) on Dec. 1, Texas has become the second state currently asking the Court to overturn Roe and Casey. On Thursday, Attorney General Ken Paxton said:

             “The Court erred in recognizing the right to abortion in Roe and in continuing to preserve it in Casey. Properly understood, the Constitution does not protect a right to elective abortion, and any laws affecting abortion should be subject only to a rational-basis test. The heartbeat provisions in SB-8 reasonably further Texas’s interest in protecting unborn life, which exists from the outset of pregnancy… If it reaches the merits, the Court should overturn Roe and Casey and hold that SB-8 does not therefore violate the Fourteenth Amendment.”

             Earlier today, the Supreme Court agreed to allow the law to remain in place for now and to hear oral arguments regarding SB-8 on Nov. 1, but the question will be limited to whether the United States may “bring suit in federal court and obtain injunctive or declaratory relief against the State, state court judges, state court clerks, other state officials or all private parties to prohibit SB-8 from being enforced.”

             In other words, the Court will not be addressing the constitutionality of Roe v. Wade – for that, America will have to wait for Dobbs v. Jackson Women’s Health Organization. Instead, the Court will rule on whether the federal government has the authority to stop a law with the unique private citizen enforcement mechanism employed in SB-8.

             Thankfully, the Lone Star State has proven through five decades of pro-life perseverance that backing down from the fight is not an option. Now, as the Dobbs case brings renewed hope that Roe could be overturned and jurisdiction over abortion legislation could be returned to the states, it is more important than ever that the nation follows in Texas’s pro-life footsteps.

             Prior to 1973, abortion in Texas was legal only to save the life of the mother. Norma McCorvey, otherwise known as “Jane Roe,” desired to electively abort her third child after putting her first two up for adoption. At the urging of pro-abortion lawyers, McCorvey challenged the ban on abortion in Texas and took her complaint all the way to the Supreme Court. In his oral argument, District Attorney of Dallas County Henry Wade asserted that the unborn child’s right to life surpassed the supposed right to privacy of the mother. Unfortunately, the Court did not agree and issued a decision that overturned state restrictions and made abortion on demand through all nine months of pregnancy the default nationwide.

             The tragic Roe decision has been responsible for the deaths of more than 62 million babies. Texas has stood firm against this evil from the very start. It responded to abortion’s legalization by establishing more than 230 pregnancy resource centers (PRCs) to provide an alternative for women considering abortion. Texas now has more PRCs than any other state in the nation – and with the Texas Heartbeat Act going into effect in September, these resources are being put to good use. The legislation, which prohibits abortion after a fetal heartbeat is able to be detected (around six weeks gestation), is estimated to be saving about 150 lives each day. One pregnancy resource organization in Texas stated that it had seen a threefold increase each week in women seeking their assistance since the law went into effect.

             The Texas Heartbeat Act was made possible by the coordinated efforts of legislators, judges and a governor who recognized the human dignity of the unborn. Although this ideal team of public officials might not exist in every state, each election is an opportunity for citizens to take a stand and guide their state into following Texas’s example.

             On November 2, many key victories for the pro-life movement could be won. Sitting Democratic governors in Virginia and New Jersey could be exchanged for pro-lifers.* In Pennsylvania, the Supreme Court seat of a current Republican is up for grabs and must be maintained by a justice who will protect the unborn. Next year, the state will also have the opportunity to replace pro-abortion extremist Tom Wolf with a governor who will protect all Pennsylvanians – including those in the womb.

             As the Dobbs case approaches the Supreme Court, with an outcome expected in 2022, and the increased pressure on the Court added by Texas today, it is more important than ever that pro-lifers hit the polls and elect people who will support pro-life laws. The day of reckoning for Roe is near, and the states must be as ready as Texas when it comes.

*Life Advocacy Briefing editor’s note: The pro-abortion governor of New Jersey, Phil Murphy, appears at our publication deadline to have won an extremely narrow victory for re-election. Pro-life Republican businessman Glenn Youngkin, however, soundly defeated former Gov. Terry McAuliffe (D) for governor of Virginia. Voters in Virginia also restored the GOP to control of the Commonwealth’s Assembly and elected pro-life Republican Winsome Sears as lieutenant governor. The new attorney general, Jason Miyares (R), has been serving in the legislature and described himself as pro-life but with exceptions and indicated publicly he would not seek to enact a law reflecting the unique approach taken by the Texas Heartbeat Act; his incumbent opponent is an abortion advocate.


Is High Court Signaling Reticence on Texas Heartbeat Law?

Nov. 2, 2021, report by Calvin Freiburger for

             Oral arguments before the United States Supreme Court began Monday over a Texas law that the court’s newest Republican justices appeared sympathetic to the abortion lobby’s legal claims.

             The Texas Heartbeat Act requires abortionists to screen for a preborn baby’s heartbeat and prohibits abortion if a heartbeat can be heard (generally as early as six weeks), with exceptions only for medical emergencies. Its unique enforcement mechanism, which “exclusively” empowers private citizens to bring civil suits against abortionists instead of state prosecutions, has been credited for the Supreme Court’s prior September decision not to block it from taking effect.

             The court heard two sets of arguments regarding the law, one concerning Texas abortionists’ challenge to its enforcement mechanism, and the other concerning the federal government’s challenge to the law. Neither case directly concerns the substance of the Texas Heartbeat Act, but whether the plaintiffs’ petitions seeking injunctions against the law have the standing to proceed.

             One major sticking point was whether the courts could review the law at all in light of the fact that no enforcement action has yet occurred, and that its deterrence of abortions so far has been entirely due to the “chilling effect” on the abortion industry’s willingness to risk violating it.

             Chief Justice John Roberts, a George W. Bush appointee, noted that it would take “a lot of fortitude to undertake the prohibited conduct” with sufficiently large financial penalties hanging over one’s head, yet “it is only by undertaking the prohibited conduct that you can get into federal court.” 

             But while Roberts’ apparent sympathy to the plaintiffs’ arguments was unsurprising in light of his record, the questioning by two of former President Donald Trump’s appointees, Justices Brett Kavanaugh and Amy Coney Barrett, raised more eyebrows.

             One major sticking point was the 1908 Supreme Court precedent Ex parte Young, which SCOTUSblog’s Amy Howe explains “allow[s] lawsuits in federal courts against state officials to bar them from enforcing unconstitutional laws, but prohibit[s] injunctions against state courts.” 

             Kavanaugh argued that Young “sets out this principle that you can get pre-enforcement review in federal court against state enforcement of laws that are assertedly unconstitutional,” and while the Heartbeat Law exploits a “loophole” in that case, the rationale “would suggest extending the principle here” to allow the providers’ suit to go forward.”

             At another point, Kavanaugh pursued a line of questioning that seemingly granted the false premise that abortion is a “constitutional right,” and asked whether upholding the law would set a precedent that could be used by “other states that disfavor other constitutional rights” to deny pre-enforcement review to infringements on speech, religion, or gun rights.

             Texas Solicitor General Judd Stone answered that “in several of those circumstances individuals who are concerned that a lack of immediate pre-enforcement federal court access would cause them ruinous liability or otherwise suppress their ability to exercise those rights, have turned to Congress and succeeded.” But Kavanaugh responded that “for some of those examples” it “would be quite difficult to get legislation through Congress.”

             Barrett, meanwhile, “repeatedly raised the question of whether the law prevents people from asserting their constitutional rights,” observes HuffPost’s Lydia O’Connor. “She also signaled concern over hundreds of people being able to sue over a single abortion, while judges could only rule one case at a time.” Barrett also pondered whether someone “who was counseling someone to get an abortion” could be sued under the law, and then “could say, I have a First Amendment right to free speech, and so it would be unconstitutional.” Stone responded by noting that Subsection F of the law “says that nothing in this section shall in any way prohibit, limit, preclude a defendant from asserting that defendant’s personal constitutional rights as a defense.”

             The questions of Trump’s first appointee, Justice Neil Gorsuch, seemed more open to Texas’s arguments. He pressed Marc Hearron, the attorney representing the abortionists, to recognize the fact that there are other accepted laws, such as defamation or gun-control measures, that “often have chilling effects on the exercise of constitutionally protected rights” yet “can only be challenged defensively.”

             Howe summarizes the justices as less sympathetic to the Biden Administration’s case, fearful the White House “was seeking broad power to bring lawsuits against states.”

             “When we get another case down the road where it’s a different solicitor general who’s making this argument in a different case,” Roberts asked, “what are we going to be able to point to that says no, no, you can’t invoke that broad equity power, or you can’t say just because there’s a state statute that is enforced by private parties, which is a very common phenomenon, that you then get to … sue the states?”

             Again, however, Kavanaugh expressed concern about another aspect of the Texas law, its provision allowing for retroactive lawsuits against violations that previously occurred during a period in which the law was temporarily blocked. “Does that play into the chilling effect argument?” Kavanaugh asked. “Millions and millions retroactively imposed even though the activity was perfectly lawful under all court orders and precedent at the time it was undertaken.”

             … Even National Review judicial analyst Ed Whelan, who endorsed the nominations of both Kavanaugh and Barrett, reacted to Monday’s hearings by marveling at “the extraordinary prospect that six justices will rule that the abortion providers … are somehow entitled to an injunction that would prevent state court clerks from accepting and filing complaints alleging violation of the Act … [n]ever mind that … such an injunction would deprive plaintiffs under the Act of their own due-process rights to petition state courts and argue that the Act can be constitutionally applied.” …