Life Advocacy Briefing

Game On

WE EXPECT OUR READERS ARE AWARE BY NOW of the leaked Supreme Court opinion draft noting that Roe v. Wade was decided in 1973 without regard to the Constitution or to long-established laws throughout America.

Much of the news reporting has focused on the question of who leaked the draft and has underscored the horror of the undermining of the Supreme Court as a collaborative, deliberative institution. We agree with that – and particularly with the concern that this “crisis” could buttress the Left’s campaign for packing the Court.

But we are disappointed – to put it mildly – that so few of our public officials are willing to utter a word about the underlying principle: that the overturning of Roe v. Wade gives state lawmakers the opportunity to get serious about instituting in law the principle of respect for the right to life of developing human babies. It is they, after all, who have the most at stake.

And it has always been true that the Constitution does not contain language offering American women “the right to abort their child,” in the stunning words of President Joe Biden (D) in his insistence on that “right.”

We will publish in this edition some of the commentaries we have found to have merit. And some of our own comments. We hope we can add to our readers’ focus on the issues involved; we will not be covering the protests, as we see that focus as abetting the abortion industry’s hysterical bid to generate unwarranted panic among the public and as a tool for the pro-abortion national Democratic Party to boost its candidates’ waning prospects.

Especially in view of the pending adjournments of many state legislatures – which ought now to be preparing to outlaw abortion at their earliest opportunity – we concur with those Washington observers who are increasingly in agreement that the country would be better off if Chief Justice John Roberts moved the Court toward concluding and releasing its majority ruling in the Mississippi Dobbs case sooner rather than waiting – as expected from typical habit – until the end of the Court’s current term, projected for late June.

Time to Weigh In!

GIVEN THAT THE DEMOCRATIC LEADERS of the US House and Senate have loudly signaled their intention to vote this week on legislation to write the abomination of Roe v. Wade into federal law, in order to block states from taking action to protect their citizens from the abortion cartel, we encourage our readers to contact their own US Representative and home-state Senators and ask them to vote “yes” on protecting Life by voting “no” on “so-called abortion rights.” [Capitol switchboard: 1-202/224-3121]

Now is the time for all good Americans to come to the aid of our country.

Are the States Ready?

It varies, just how ready the states are to respond to a landmark Supreme Court reversal on the right to life of innocent preborn children.

According to the New York Times, quoted by LifeSiteNews reporter Matt Lamb, “Leaders in conservative states, like South Dakota, Arkansas, Georgia and Indiana talked about calling special legislative sessions to ban the [abortion] procedure as soon as the Supreme Court rules.”

Adds Mr. Lamb, “South Dakota’s Republican Gov. Kristi Noem tweeted Monday, she ‘will immediately call for a special session to save lives and guarantee that every unborn child has a right to life in South Dakota’ if Roe is overturned.”

More than 100 GOP legislators in Indiana signed a March letter calling on Gov. Eric Holcomb (R) to call the legislature back into session to fix Indiana’s laws in the event the Supreme Court hands the power to the states to limit the killing of unborn children.

The governor of Georgia, primary-embattled Brian Kemp (R), told the Augusta Chronicle, reports Mr. Lamb, “he is pleased with the potential Court ruling and said he ‘look[ed] forward to the Court issuing its final ruling.’ A federal court,” notes Mr. Lamb, “reversed a 2019 Heartbeat Bill signed by [Mr.] Kemp, but that legislation could now be upheld if Roe is reversed.”

In Arkansas, all that would be necessary would be for state and local prosecutors to begin enforcement of a 2019 “trigger” law enacted in anticipation of a Roe reversal. The state law criminalizes abortion and can take effect upon the High Court’s declaration that Roe is no longer to be considered precedential. The Arkansas trigger is echoed by such trigger laws in more than a dozen states, according to LifeSiteNews.

Is the Court Really Ready?

IN AN INTERVIEW WITH FOX NEWS ANCHOR MARTHA McCALLUM Wednesday, former Attorney General Bill Barr offered a point we find worth quoting – and one we have not been hearing from others – related to whether the Alito opinion is actually a majority-endorsed draft ready to be released. (Quote here transcribed by Life Advocacy Briefing.)

“The whole doctrine of stare decisis also has in it some factors that are consulted that may lead a Court to overrule a prior precedent, and the draft opinion that was circulated went into all of that. Now I think we don’t want to get ahead of ourselves and assume that that draft had five votes locked in; I’m skeptical that it did. I think things could still be in flux. … An opinion isn’t final until almost the day it goes out. Remember what happened in ObamaCare; there were some last-minute changes just in the last 24 hours before an opinion was issued. So, I think there was an effort, obviously, to galvanize a majority of the Justices, but I don’t think that the circulation of that draft necessarily means that there were five Justices irrevocably committed to that position.”

Earnest prayer is very much in order.

Quoteworthy

Vice President Kamala Harris, speaking before the giant pro-abortion political action group EMILY’s List, quoted by LifeSiteNews writer Calvin Freiburger, citing Politico as source: “‘Some Republican leaders are trying to weaponize the use of the law against women. How dare they?! How dare they tell a woman what she can and cannot do with her own body? How dare they try to stop her from determining her own future? How dare they try to deny women their rights and their freedoms?’”

Senate Majority Leader Charles Schumer (D-NY) in Senate floor speech, transcribed by Life Advocacy Briefing: “The Court disclosed that a conservative majority of the United States Supreme Court is ready to overturn Roe v. Wade and uproot decades of precedent affirming a woman’s right to an abortion. If this report is accurate, the Supreme Court is poised to inflict the greatest restriction of rights in the past 50 years, not just on women but on all Americans. Under this decision, our children will have less rights than their parents. The Republican-appointed Justices’ reported votes to overturn Roe v. Wade will go down as an abomination – one of the worst, most damaging decisions in modern history.”

President Joe Biden, quoted by Ian Schwartz in a “discussion with the media” published by Real Clear Politics: “‘… The idea that we’re going to make a judgment that is going to say that no one can make the judgment to choose to abort a child based on a decision by the Supreme Court, I think, goes way overboard.’” (Emphasis added by Life Advocacy Briefing)

Tidbits from the Alito Draft

May 4, 2022, excerpt from report by Emily Mangiaracina, LifeSiteNews       

             “Abortion destroys … what the law now before us describes as an ‘unborn human being.’”

             The opinion further notes that “until the latter part of the 20^th century,” a “right” to abortion was “entirely unknown in American law.”

Fundamentally Principled

May 3, 2022, Washington Examiner commentary by Quin Hillyer

             Justice Samuel Alito’s draft decision in the Dobbs abortion case is a powerfully argued legal masterpiece throughout, but its central point is made in just 25 words on page 15. To wit: “Until the latter part of the 20th Century, there was no support in American law for a constitutional right to obtain an abortion. Zero. None.”

             That is the indisputable reality of abortion jurisprudence, as Alito shows through exhaustive historical research and bracing logic. In both the Roe v. Wade decision in 1973 and Planned Parenthood v. Casey in 1992, the majority of justices essentially made up Constitutional provisions from thin air. As Alito wrote, “The Constitution makes no reference to abortion, and no such right is implicitly protected by any Constitutional provision.”

             Yes, not even implicitly.

             This has nothing to do with whether one’s policy preferences are “pro-life” or “pro-choice” or some mix of the two. This has everything to do with how our Constitutional system is supposed to work. The Constitution’s list of rights and protections is explicit. Even if it is not exhaustive, it contains no grant of broad authority for Justices to create whatever new so-called “rights” their own sensibilities demand. In addition to rights expressly listed in the Constitution, the only other ones that are inviolable are those (quoting prior Supreme Court cases) “deeply rooted in this nation’s history and tradition” and “implicit in the [very] concept of ordered liberty.”

             And yes, those strictures are meaningful, rather than open to broad interpretation. There are legitimate methods of historical and legal inquiry to determine which “rights” are both deeply rooted and obviously implicit. (For a great example of such methodology published within the past year, read The Original Meaning of the Fourteenth Amendment by Randy Barnett and Evan Bernick.) Alito even quotes a series of liberal, pro-choice Constitutional luminaries who have acknowledged that Roe identified no such roots and that it essentially invented Constitutional provisions from the ether.

             The good news for those seeking other, non-Constitutional legal protections is that the bulk of the Constitution is not dedicated to listing rights but to creating a system whereby representative, republican processes allow the people themselves to determine how the law works in their communities. Rights or privileges that do not obviously predate society itself are not always so widely recognized as to be enshrined by the people in their Constitution. Yet these can still be protected through state and local laws.

             Quoting the late Justice Antonin Scalia, Alito writes: “The permissibility of abortion, and the limitations upon it, are to be resolved like most important questions in our democracy: by citizens trying to persuade one another and then voting.”

             As Alito demonstrates at great length, Roe was so poorly reasoned that subsequent “pro-choice” Supreme Court decisions have jettisoned all of it – both its reasoning and its practical applications. All that remains is a shell around the idea that abortion is a right. But even in reaffirming that right, Casey created an entirely new justification for it. Later court rulings further modified (and in many cases abandoned) Casey’s arguments, too.

             In sum, not even those who say abortion is a Constitutional right can settle among themselves why it is such a right or what provisions of the Constitution actually protect it. That’s because, as written, it manifestly does not.

             “Roe was on a collision course with the Constitution from the day it was decided,” Alito wrote, “and Casey perpetuated its errors.” If the Court majority finalizes something like Alito’s draft decision, then the Constitution, rather than Roe and Casey, will happily survive that collision.

Distorting the Implications

May 4, 2022, Wall Street Journal editorial, reprinted for informational purposes

             First, they ban abortion. Next will be a contraception ban. Then a ban on same-sex marriage and even interracial marriage. Soon we will all be living in “The Handmaid’s Tale.”

             That’s the parade of horribles that Democrats and the media are trying to sell Americans after the leak of a draft Supreme Court opinion that would repeal a constitutional right to abortion.

             If Roe v. Wade falls, it “would mean that every other decision related to the notion of privacy is thrown into question,” Pres. Biden warned Tuesday. “Does this mean that in Florida they can decide they’re going to pass a law saying that same-sex marriage is not permissible?” If we can borrow a word he likes, the President’s peddling disinformation.

             The press is full of similar pearl-clutching about which precedent the Supreme Court might strike down next. Is it Obergefell (2015), which enshrined gay marriage? Griswold (1965), which overturned a state law prohibiting married couples from buying contraceptives? What about even Loving v. Virginia (1967), which guaranteed interracial marriage?

             The correct answer is none of the above, as Justice Samuel Alito’s draft takes pains to emphasize. The leaked opinion is explicit about distinguishing Roe and its 1992 legal revision, Planned Parenthood v. Casey, from cases on unrelated social topics. “None of the other decisions cited by Roe and Casey involved the critical moral question posed by abortion,” the draft says. “They do not support the right to obtain an abortion, and by the same token, our conclusion that the Constitution does not confer such a right does not undermine them in any way.”

             It’s true that those past decisions have been criticized by conservatives. Griswold is where the Court said the Bill of Rights has “emanations” that create “penumbras,” a phrase long lampooned by the right. Justice Anthony Kennedy’s opinion in Obergefell asserted that the Constitution guarantees rights for free Americans to “define and express their identity.” Justice Antonin Scalia’s dissent compared that line to “the mystical aphorisms of the fortune cookie.”

             Yet unlike Roe, both of those decisions have established themselves as durable precedents with broad public acceptance. A Gallup poll in 2019 found that 92% of Americans believed using birth control to be “morally acceptable.” That was up three points since 2012, and it included 90% of the respondents who identified as conservative or very conservative.

             On gay marriage, 70% of people told Gallup last year that the law should treat such unions no differently than traditional ones. That’s up from 58% the year Obergefell came down. As for Loving, Gallup says 94% support black-white marriages.

             That stands in contrast to abortion, which remains a contested moral and political issue. As Justice Alito’s draft opinion points out, even Roe acknowledged that the state has a legitimate interest in protecting “potential life.” There’s a reason that thousands of Americans have spent nearly 50 years enduring the January cold in Washington at the annual March for Life.

             In 1975, Gallup found that 21% of Americans said abortion should be always legal, 22% never legal and 54% legal only in certain circumstances. Last year the figures were 32% always legal, 19% never and 48% sometimes. Whatever the High Court thought it was doing in Roe and again in Casey, it didn’t come close to settling the debate. And judges are ill equipped to draw the distinctions in abortion policy that a plurality of Americans say they want.

             In the marriage cases, there are also what the Court calls “reliance interests” at stake. Hundreds of thousands of Americans are married to people of the same sex. The Supreme Court isn’t going to invalidate those unions and disrupt so many lives. The same goes for interracial marriage. By the way, Justice Clarence Thomas is married to a white woman.

             Roe also stands apart on what Justice Alito’s opinion calls “workability” grounds. Roe has continued to inspire a mass of litigation as modified by Casey’s “undue burden” test. No one really knows what that burden is, so states bring case after case to contest it. By contrast, Obergefell, Griswold and similar rulings have not been challenged by what Justice Scalia called “give-it-a-try” legislation.

             Democrats don’t want Americans to know all this, because their political goal is to frighten them into believing that Justice Alito is some black-robed Pharisee bent on invading their bedrooms. It’s simply not true. Repealing Roe would merely return abortion policy to the states and democratic [small “d”] debate. That’s all.