Life Advocacy Briefing

The Court Rules, Women Suffer & Babies Die

THEY WAITED UNTIL THE END OF JUNE – the end of their current term – to render their so-called judgment, but once the majority of the Supreme Court’s so-called “Justices” started rolling out their twisted rulings on Life, their decisions were, tragically, consistent.

The Court majority last week shocked America’s pro-life majority by invalidating the Texas statute that protected women’s health by requiring abortionists to maintain hospital admitting privileges within 30 miles and requiring abortuaries – which claim, in the public arena, to be health clinics – to maintain the health-and-safety standards of an ambulatory surgical center.

“Swing” Justice Anthony Kennedy joined Justices Ruth Ginsburg, Sonia Sotomayor and Elena Kagan in signing onto the outlandish “majority opinion” penned by Justice Stephen Breyer.

Justice Clarence Thomas penned a dissent, in which he was joined by Justice Samuel Alito and Chief Justice John Roberts, which was widely quoted in the media. The Federalist published a sample of “eight best quotes” from the Thomas Dissent, reported by Federalist staff writer Bre Payton, who opined, “The decision is the most significant abortion ruling since the Carhart ruling in 2007, which upheld a federal ban on partial-birth abortions.”

The Court got it right in Carhart and horribly wrong in the Texas case, leading pro-life citizens to put Supreme Court nominations even higher on the agenda for the November election. (Justices Breyer and Ginsburg are 77 and 83 years old, respectively. Justice Kennedy is 79 years old. The other two of the Abortion-Fanatic Five are younger, so will likely spend many more years on the Court.)

We publish excerpts from the Thomas dissent near the close of this Life Advocacy Briefing.

Trampling an Actual Constitutional Right

NEXT THE HIGH COURT MAJORITY TURNED THEIR BACKS on the religious freedom of pharmacists in Washington State, who had sought to exercise their consciences in refusing to sell abortifacient contraceptives, such as the so-called “morning-after pill.” Justices Clarence Thomas and Samuel Alito, along with Chief Justice John Roberts, called the Court majority’s refusal to hear the pharmacists’ appeal, “‘an ominous sign,’” according to NBC News writer Pete Williams. Another blow in the name of “abortion rights.”

Big Abortion’s Response

IT APPEARS THAT EVEN PLANNED PARENTHOOD DID NOT EXPECT the ruling it achieved in the Texas case last week. At least, that’s the way it looks in Texas, where the wake of the law’s enactment in 2013 saw the number of abortuaries drop in just months from 41 to 19 and, according to Doug Bean’s account for LifeSiteNews.com, “the number would have dwindled to 10 … if the Supreme Court had upheld the law and it had been fully implemented to include adherence to increased safety requirements.”

Though Planned Parenthood and Whole Woman’s Health – the lead abortion outfits in Texas – are expecting to reopen some of the facilities they closed in 2013, “not as many” will reopen, reports Mr. Bean, as functioned “before the Texas law went into effect, and not,” he writes, “in the immediate future.” Abortuary operators “cautioned,” he reports, “that it will take time for new leases to be negotiated and to rehire staff. …

“‘Clinics don’t reopen overnight,’ said Amy Hagstrom Miller, CEO and founder of Whole Woman’s Health, which operates four abortion centers in the state,” notes Mr. Bean, “and was the lead plaintiff in the case. ‘We have a daunting task in front of us, determining whether and how we can reopen health centers,’” she said in the LifeSiteNews report.

Addressing the media after the ruling, ACLU Legal & Policy Director Rebecca Robertson said, reports Mr. Bean, “‘This law was litigated for three years, and in that time, we saw a lot of damage. Some of those clinics are likely not coming back. It sometimes takes years to rebuild access that we had before.’” “Access” that includes shoddy operations and citations at Whole Woman’s Health for the basic safety requirements that were in place even before this law was enacted – like improper sterilization of surgical instruments.

Pledged Joe Pojman, executive director of the Austin-based Texas Alliance for Life, quoted by LifeSiteNews, “‘We’re not going to go away. [The backwards Supreme Court ruling] is going to make us stronger. In the short term,’” he noted, “‘a lot of women are going to continue to be trapped by abortion, in addition to the loss of the unborn child. That’s the sad thing in the short term.’”

But the fight for justice and mercy and common sense is far from over. The Supreme Court’s backward step last week cannot be allowed to stand and will, we at Life Advocacy Briefing believe, fire up the pro-life movement and put the immoral injustice of abortion more squarely into the 2016 elections, where the American people can express their own dismay through their votes.

Putting Planned Parenthood First

AFTER A VETO THREAT FROM THE WHITE HOUSE, Democrats in the US Senate last week refused to allow a Senate vote on curbing the Zika virus, largely because the major spending bill contained a provision appropriating funds to community health agencies and specifically barring Planned Parenthood and abortionists from riding the Zika wave.

The voting record on the cloture motion appears at the close of this Life Advocacy Briefing, where readers will find that just one Democrat – Sen. Joe Donnelly of Indiana – voted for the motion and two Republicans (other than the GOP Leader, who was voting with the minority in order to be eligible for a reconsideration motion) – Senators James Lankford of Oklahoma and Mike Lee of Utah – voted against the motion; in the case of Republicans, their votes were based on spending considerations, but because of the abortionist-funding implications, we label their votes “anti-Life.”

Timely Reminders

Excerpts from America’s Declaration of Independence, source: National Archives

The unanimous Declaration of the thirteen united States of America, IN CONGRESS, July 4, 1776.

When in the Course of human events, it becomes necessary for one people to dissolve the political bands which have connected them with another, and to assume among the powers of the earth, the separate and equal station to which the Laws of Nature and of Nature’s God entitle them, a decent respect to the opinions of mankind requires that they should declare the causes which impel them to the separation.

We hold these truths to be self-evident, that all men are created equal, that they are endowed by their Creator with certain unalienable Rights, that among these are Life, Liberty and the pursuit of Happiness. – That to secure these rights, Governments are instituted among Men, deriving their just powers from the consent of the governed, – That whenever any Form of Government becomes destructive of these ends, it is the Right of the People to alter or to abolish it, and to institute new Government, laying its foundation on such principles and organizing its powers in such form, as to them shall seem most likely to effect their Safety and Happiness. Prudence, indeed, will dictate that Governments long established should not be changed for light and transient causes; and accordingly all experience hath shewn, that mankind are more disposed to suffer, while evils are sufferable, than to right themselves by abolishing the forms to which they are accustomed. But when a long train of abuses and usurpations, pursuing invariably the same Object evinces a design to reduce them under absolute Despotism, it is their right, it is their duty, to throw off such Government, and to provide new Guards for their future security. …

[Original text here is a lengthy list of objections to the unconscionable abuses of the King of England, documenting the need for the extraordinary Declaration of Independence, subscribed to by the full body of colonial delegates who met in Congress in Philadelphia on July 4, 1776. Below is the conclusive, declarative paragraph to which the delegates boldly subscribed their names, knowingly and expressly at the risk of their lives, their fortunes and their sacred honor]

… We, therefore, the Representatives of the united States of America, in General Congress, Assembled, appealing to the Supreme Judge of the world for the rectitude of our intentions, do, in the Name, and by Authority of the good People of these Colonies, solemnly publish and declare, That these United Colonies are, and of Right ought to be Free and Independent States; that they are Absolved from all Allegiance to the British Crown, and that all political connection between them and the State of Great Britain, is and ought to be totally dissolved; and that as Free and Independent States, they have full Power to levy War, conclude Peace, contract Alliances, establish Commerce, and to do all other Acts and Things which Independent States may of right do. And for the support of this Declaration, with a firm reliance on the protection of divine Providence, we mutually pledge to each other our Lives, our Fortunes and our sacred Honor.

And from The Constitution of the United States of America, source: National Archives

Amendment V
No person shall be held to answer for a capital, or otherwise infamous crime, unless on a presentment or indictment of a Grand Jury, except in cases arising in the land or naval forces, or in the Militia, when in actual service in time of War or public danger; nor shall any person be subject for the same offence to be twice put in jeopardy of life or limb; nor shall be compelled in any criminal case to be a witness against himself, nor be deprived of life, liberty, or property, without due process of law; nor shall private property be taken for public use, without just compensation.

Amendment XIV, Passed by Congress June 13, 1866. Ratified July 9, 1868
Section 1. All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside. No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without the due process of law; nor deny to any person within its jurisdiction the equal protection of the laws. …

Wisdom & Warning from Mr. Justice Thomas

Excerpts from Justice Clarence Thomas’s dissent in the Texas abortion case (Hellerstedt), source: Supreme Court Opinion

Today the Court strikes down two state statutory provisions in all of their applications, at the behest of abortion clinics and doctors. That decision exemplifies the Court’s troubling tendency “to bend the rules when any effort to limit abortion, or even to speak in opposition to abortion, is at issue.” [Quoting from the late Justice Antonin Scalia’s dissent in Stenberg v. Carhart]

As Justice Alito observes …, today’s decision creates an abortion exception to ordinary rules of res judicata, ignores compelling evidence that Texas’s law imposes no unconstitutional burden and disregards basic principles of the severability doctrine. I write separately to emphasize how today’s decision perpetuates the Court’s habit of applying different rules to different Constitutional rights – especially the putative right to abortion.

To begin, the very existence of this suit is a jurisprudential oddity. Ordinarily, plaintiffs cannot file suits to vindicate the Constitutional rights of others. But the Court employs a different approach to rights that it favors. So in this case and many others, the Court has erroneously allowed doctors and clinics to vicariously vindicate the putative Constitutional right of women seeking abortions.

This case also underscores the Court’s increasingly common practice of invoking a given level of scrutiny – here, the abortion-specific undue burden standard – while applying a different standard of review entirely. Whatever scrutiny the Majority applies to Texas’s law, it bears little resemblance to the undue-burden test the Court articulated in Planned Parenthood of Southeastern Pennsylvania v. Casey and its successors. Instead, the Majority eviscerates important features of that test to return to a regime like the one that Casey repudiated.

Ultimately this case shows why the Court never should have bent the rules for favored rights in the first place. Our law is now so riddled with special exceptions for special rights that our decisions deliver neither predictability nor the promise of a judiciary bound by the rule of law.

This suit is possible only because the Court has allowed abortion clinics and physicians to invoke a putative Constitutional right that does not belong to them – a woman’s right to abortion. The Court’s third-party standing jurisprudence is no model of clarity. … Driving this doctrinal confusion, the Court has shown a particular willingness to undercut restrictions on third-party standing when the right to abortion is at stake. And this case reveals a deeper flaw in straying from our normal rules: When the wrong party litigates a case, we end up resolving disputes that make for bad law. For most of our Nation’s history, plaintiffs could not challenge a statute by asserting someone else’s Constitutional rights. … Above all, the Court has been especially forgiving of third-party standing criteria for one particular category of cases: those involving the purported substantive due process right of a woman to abort her unborn child. …

The Court does not question whether doctors and clinics should be allowed to sue on behalf of Texas women seeking abortions as a matter of course. They should not. The central question under the Court’s abortion precedents is whether there is an undue burden on a woman’s access to abortion. … But the Court’s permissive approach to third-party standing encourages litigation that deprives us of the information needed to resolve that issue. Our precedents encourage abortion providers to sue – and our cases then relieve them of any obligation to prove what burdens women actually face. I find it astonishing that the Majority can discover an “undue burden” on women’s access to abortion for “those [women] for whom [Texas’s law] is an actual rather than an irrelevant restriction,” … without identifying how many women fit this description, their proximity to open clinics or their preferences as to where they obtain abortions, and from whom. “Commonsense inference[s]” that such a burden exists … are no substitute for actual evidence. …

The Court has simultaneously transformed judicially created rights like the right to abortion into preferred Constitutional rights, while disfavoring many of the rights actually enumerated in the Constitution. But our Constitution renounces the notion that some Constitutional rights are more equal than others. A plaintiff either possesses the Constitutional right he is asserting or not – and if not, the judiciary has no business creating ad hoc exceptions so that others can assert rights that seem especially important to vindicate. A law either infringes a Constitutional right or not; there is no room for the judiciary to invent tolerable degrees of encroachment. Unless the Court abides by one set of rules to adjudicate Constitutional rights, it will continue reducing Constitutional law to policy-driven value judgments until the last shreds of its legitimacy disappear.

Today’s decision will prompt some to claim victory, just as it will stiffen opponents’ will to object. But the entire Nation has lost something essential. The Majority’s embrace of a jurisprudence of rights-specific exceptions and balancing tests is [quoting the late Justice Antonin Scalia in “The Rule of Law as a Law of Rules” published by the University of Chicago Law Review in 1989] “a regrettable concession of defeat – an acknowledgment that we have passed the point where ‘law,’ properly speaking, has any further application.”

Senate Voting Record

Cloture Motion to consider Conference Report on HR-2577, including appropriations to thwart the Zika virus and excluding abortionists from community health grants – Failed – June 28, 2016 – 52-to-48 (needing 60) (Democrats in italics; “Independent” marked “I”)

Voting “yes” / pro-Life: Sessions & Shelby (AL), Murkowski & Sullivan (AK), Flake & McCain (AR), Boozman & Cotton (AK), Gardner (CO), Rubio (FL), Isakson & Perdue (GA), Crapo & Risch (ID), Kirk (IL), Coats & Donnelly (IN), Ernst & Grassley (IA), Moran & Roberts (KS), Paul (KY), Cassidy & Vitter (LA), Collins (ME), Cochran & Wicker (MS), Blunt (MO), Daines (MT), Fischer & Sasse (NE), Heller (NV), Ayotte (NH), Burr & Tillis (NC), Hoeven (ND), Portman (OH), Inhofe (OK), Toomey (PA), Graham & Scott (SC), Rounds & Thune (SD), Alexander & Corker (TN), Cornyn & Cruz (TX), Hatch (UT), Capito (WV), Johnson (WI) and Barrasso & Enzi (WY).

Voting “no” / anti-Life: Boxer & Feinstein (CA), Bennet (CO), Blumenthal & Murphy (CT), Carper & Coons (DE), Nelson (FL), Hirono & Schatz (HI), Durbin (IL), McConnell (KY)*, King (I) (ME), Cardin & Mikulski (MD), Markey & Warren (MA), Peters & Stabenow (MI), Franken & Klobuchar (MN), McCaskill (MO), Tester (MT), Reid (NV), Shaheen (NH), Booker & Menendez (NJ), Heinrich & Udall (NM), Gillibrand & Schumer (NY), Heitkamp (ND), Brown (OH), Lankford (OK), Merkley & Wyden (OR), Casey (PA), Reed & Whitehouse (RI), Lee (UT), Leahy & Sanders (VT), Kaine & Warner (VI), Cantwell & Murray (WA), Manchin (WV) and Baldwin (WI).

Note: Leader McConnell voted “no” to secure the right to file a motion to reconsider.