The Supreme Court Failed the Pro-Life Movement By Further Entrenching the Notion of a Woman’s Unfettered Right to Abortion Access

Supreme Court - abortion

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

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As We Recognize the Anniversary of Roe v. Wade

Fetus (face, sucking thumb)

by Diane Rufino, January 22, 2014

On the Anniversary of Roe v. Wade, we take stock of how the high court has repeatedly twisted the Constitution to undermine family values and to negate the benefits of federalism.

More and more we hear people complain of being forced to live their lives according to dictates and mandates by the government that are morally reprehensible to them. More and more we hear entire states suggest that it would be better for their self-interest if they separated from the United States. The values of North Carolina are not the values (thank God!) of New York.  The values of South Carolina are not the values of California. And the values of Texas are not the values of New Jersey. And if the vision of our Founding Fathers, as memorialized in the federal design of government and in the Tenth Amendment, were respected today by the federal government and particularly the Supreme Court, each state would be free to embrace the values that their people chose. We would have 50 different “communities,” each offering their citizens the opportunity to live as they see fit and as would most effectively promote their “pursuit of happiness.”  So, if a family in New York decided that the values in that state were counter-productive to the raising and education of their children, for example, they might have the opportunity to move to another state where conditions and values more closely suit the philosophy that best defines their life.

How did we get this “one-size-fits-all” approach to the several states?  There is only one authority that has the power to do so – the federal government.  The government, through its commandeering of the Court system and its exclusive power to define the provisions and powers listed in the Constitution, has broken down the boundaries that allow each state to remain unique.  The same government that embraces diversity in human beings denies diversity in the individual states. Without a doubt, the Court has used this power to its fullest advantage, not only to centralize more power in its three branches and to weaken the States, but also to engineer a new social order. The new social order has signaled a decline in America. The “one-size-fits-all” approach has caused Americans great frustration because it offers them no alternatives.  In nearly every aspect of their lives, aside from physical address and scenery, people are being told they have only ONE WAY to live their lives. They have to conform to ONE WAY of thinking. Under the guise of tolerance, they are FORCED to embrace policies that offend rights of conscience and offend traditional notions of decency and conduct.

On this 41st anniversary of Roe v. Wade, I thought we might take a look at this case and see how the Court furthered its goal to re-engineer American society and to re-prioritize our national values.

On January 22, 1973, seven non-elected members of the US Supreme Court handed down the Roe v. Wade decision – a decision that rivals, in utter disgust, the holding of Dred Scott.  Both cases determine (or should I say, undermine) the worth of a class of human beings. But aside from that, the question is this:  Was the issue at stake one for the federal government to decide or one for the States?

The question before the Court was whether the US Constitution embraces the right of a woman to have an abortion. Norma McCorvey, known in court documents as Jane ROE, was a single woman who became pregnant and then sought to have an abortion. Texas law at the time (which dated back to 1854) did not allow a woman to have an abortion and terminate a pregnancy, unless that pregnancy threatened the life of the mother. She sued in order to prevent Dallas Attorney General Henry Wade from enforcing that law and hopefully to invalidate the law. Well, that should be clarified.  She didn’t want to sue.  It was only when two lawyers representing a Womans’ Rights activist group approached her and convinced her to sue and challenge the abortion statute that she agreed to be “their girl.”  The ambitious lawyers argued that McCorvey’s ability to control her fertility should be recognized and protected by the Bill of Rights (thereby safe from government action to violate it, and through the 14th amendment, safe from any state action as well).  In other words, they asked the Court to recognize a woman’s right to control her fertility, even after a child has been created.

Why didn’t anyone argue that she already has the power and the right to control her fertility. It’s called “consent or non-consent to sexual intercourse.”  The power lies with her.  She holds the power to have children – thanks to the Laws of Nature.  And she also holds the power as to when she will have those children.  If she decides to engage in sexual activity with protection and that protection fails, she has the option of immediately addressing the situation.  After all, a fertilized egg doesn’t immediately begin its program to create life. Even after 12 hours after conception, the fertilized egg cell still remains a single cell.  Only after approximately 30 hours does it finally begin to divide from one cell into 2 cells.  And then another 15 or so hours after that, it divides again, to yield four cells.  At the end of three days, the conception event is merely a ball of 16 cells. Does that group of 16 cells establish “life”?   (That, fortunately or unfortunately, is not the question of this piece).

Issues of marriage and family are ones rightfully reserved to the States. It has always been so.  The federal government knows this and the justices of the Supreme Court know this too.  But by finding a new provision in the Bill of Rights – one not expressly articulated – the Court was able to make universal policy on abortion. That “invisible” provision is the right to Privacy.  Has anyone read the Bill of Rights lately?  Has anyone found that one listed?  I think if our Founders wanted the bundle of rights embraced by privacy in general, that amendment would have been one of those included.  The Supreme Court rejected the argument that the right to an abortion is one embraced by the Ninth Amendment.  As mentioned above, a woman has always had the right to control her fertility. It’s called consent and non-consent.  That’s why abortion laws have always contained exceptions for cases when the woman has been raped. The right to an abortion is a distinct right.

The bigger issue in Roe v. Wade, as is clear from the decision and later comments by Justice Sandra Day O’Connor and Justice Ruth Bader Ginsburg, was the ability of women to compete equally in the workforce.  Women cannot compete equally if they are continually “held back” by an unwanted pregnancy. That was the issue at the heart of Roe v. Wade – not the definition of life or the right to life. The particulars of how they got that issue to the Court is what makes this case so very disturbing.  Womens’ Rights activists used the issue at stake in the case to sacrifice the lives of unborn children to advance their agenda….  The same agenda that the government also felt compelled to promote.

Here are some of the arguments that the supporters of Roe advocated as being vital to a Woman’s Right to Terminate a Pregnancy:  They said the right to an abortion helps to preserve women’s rights, her personal freedom, and her privacy. A denial of the right, they argued, would be condemn women to compulsory motherhood and ‘involuntary servitude’ in violation of the Thirteenth Amendment.

McCorvey was single at the time of her pregnancy. She was a drug abuser and had left her husband (and two children). After her third pregnancy (at issue in the lawsuit), which ended in the child’s birth (because of the length of the case), she gave up the child for adoption and went on to become a lesbian for awhile.  It’s nice that such people who have such a problem conforming their conduct are the ones that dominate our courts and are responsible for the social engineering that has defined the new America.  Where is the notion that laws are supposed to promote good and productive behavior and discourage bad and unproductive behavior?

How sad that our nation’s highest court was able to “stretch” and re-define the US Constitution to find rights for women to terminate an unwanted pregnancy but continues to refuse to find the same latitude in the Constitution to find that an unborn child has any rights at all.  (Sure the decision holds that the right to an abortion is not absolute and it has to be balanced against the State’s countervailing interests in preserving the health of the woman and in protecting the “potential” life of the unborn child, but for all practical purposes and in light of subsequent cases that emphatically state that obstacles to a woman’s right to an abortion on demand are unconstitutional, the right to an abortion is absolute).  How sad that we have to read accounts of fully-formed babies being aborted and terminated. (that is, KILLED). Termination is what you do to an employee or a contract.  Murder and killing is what you do to a living human being that intentionally deprives it of its life.  How sad that we have to be a country divided among people who value life all life and those who value life except that which grows inside a woman that happens to burden her ambitions or complicate her life.

As it stands today, every woman in the United States has the legal right to obtain an abortion in all 50 states, through all nine months of pregnancy, for virtually any reason at all.  After all, the autonomous decision to have such is built into the Constitution.  And the 14th Amendment incorporates the rights as against the States as well (even though the 14thAmendment requires each incorporated right to be one that is historically rooted in our American notion of ordered liberty).  All of this is the legacy of Roe v. Wade.  As John T. Noonan, senior circuit judge on the Ninth Circuit Court of Appeals, wrote: “Roe v. Wademay stand as the most radical decision ever issued by the Supreme Court.”

If the Court had only the backbone and conviction to respect the Tenth Amendment and the issues that traditionally belong to the individual states, the issue of abortion could have been decided by the individual states.  Chances are that New York and other liberal states would embrace such a right (at the expense of the helpless unborn) while the states populated by people who respect all life would likely take a different approach….  They might likely reserve abortion in instances when the life of the mother is certainly at serious risk, or they might have programs of adoption for those who are unwilling to keep the child they give birth to, or they might have a robust Church communities that develop programs to care for the children of unwanted pregnancies, or maybe, just maybe, hey might have aggressive public school programs and social programs that EMPHASIZE and promote abstinence.

The point is that the people of each state have a right – a reserved right – to determine issues of social policy within their borders. Each state has the right to guide and determine the kind of citizen it would like to live within its borders (that’s why education is so important as an state initiative) and the kinds of communities (absent any glaring true constitutional violations) to support them.

So, on this 41st anniversary of Roe v. Wade, we have to ponder the consequences of the decision.  We have legally declared that a class of human beings has no legal rights (as Dred Scott did to African-Americans) and we have condemned millions to torture and death, simply for the opportunity for women to compete equally with men in the workforce.  As George Bush once said: “The fingers and toes and beating hearts that we can see on an unborn child’s ultrasound come with something that we cannot see… a soul.”  We have to be disgusted at both the decision itself and the legal wrangling that our highest court used to usurp state authority and further create the “one-size-fits-all” degenerate social society that we have now.