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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PLANNED PARENTHOOD: Killing Fetuses and Selling Their Body Parts

ABORTION - fetus           by Diane Rufino, July 31, 2015

STEP ASIDE DR. MENGELE…  There’s a new monster in town.

PLANNED PARENTHOOD EXPOSED!  Planned Parenthood Uses Partial-Birth Abortions to Sell Baby Parts.

“It’s another boy!”, exclaims the Planned Parenthood “lab technician” who has just finished sifting through a glass pie pan filled with the remains of a second trimester baby’s body parts. “There’s an eyeball… and there’s a leg” is clearly heard and shown for the whole world to see. Those who will not watch these videos from the Center for Medical Progress are either (a) guilty of promoting, participating and condoning these murders, passed off as “choices” and wish to maintain “plausible deniability” or (b) do not want to confirm that there ARE TENS OF MILLIONS of Americans in group (a) and would rather just go back to the good ol’ days of welcoming Caitlyn Jenner to un-mutilated society.

Unless you have an emotional and/or financial interest in killing babies, you’re not buying Planned Parenthood’s excuses for the utterly devastating videos that have put abortion enthusiasts on defense. No, it’s not about “donating fetal tissue.” It’s not about “protecting women’s health.” It’s about killing people who can’t defend themselves, selling their organs, and lying about it.   [From the Mike Church Show].

A series of four undercover videos from a pro-life group have rocked Planned Parenthood – and the national debate over abortion. The tapes, which are dated April 7, 2015, show staff from Planned Parenthood’s Rocky Mountains affiliate, located in Denver, Colorado, engaging in negotiations over human fetal body parts. In all of the videos, officials from the nation’s largest abortion provider discuss compensation for extracting organs from aborted fetuses, including, in one case, over wine and salad at lunch.  The sale of fetal body parts is illegal under federal law. The punishment for such an act includes hefty fines and/or up to 10 years in prison. Much of the debate stemming from these videos, from a legal point of view, has been over whether the conduct of Planned Parenthood constitutes “sales” or “compensation.”  The fourth video, in particular, shows the actual harvesting of fetus body parts.

Let’s put the “sale or compensation” question aside.  The much larger issues concern how abortion has been sold, and what it truly is and what are the underlying social values that have given rise to this modern-day House of Horrors.

In his article on the subject, “How the Planned Parenthood Videos Expose Abortion for What It Truly Is,” Edward Morrissey explains this latest scandal:

The conversations clandestinely captured by the activist group Center for Medical Progress would sound familiar to anyone who has held negotiations with vendors and buyers over pricing. The level of compensation changes depending on the organs involved and how cleanly they can be separated. One executive claims that all Planned Parenthood clinics want is reasonable compensation, but if they “come out a little ahead,” they’re “happy to do it.” Another jokes that she wants a Lamborghini and doesn’t want to name a figure first for fear of getting “low-balled.”

In the latest video, which depicts an actual dissection of aborted material as a technician identifies the human organs for transfer, a vice president of a regional chapter of Planned Parenthood discusses the benefits of pricing the individual parts over a flat rate for each specimen. As the technician points out intact kidneys and a spinal column in a pie dish of the torn-apart remains of a first-trimester fetus, Dr. Savita Ginde tells the undercover reporter posing as a buyer that she prefers to transact as a “per-item thing.” That “works a little better,” Ginde says on hidden camera, “just because we can see how much we can get out of it.”

To many people, these conversations sound very much like Planned Parenthood is selling tissue based on market value. Even if the prices seem rather low on a “per-item thing,” the transfers reduce the costs for disposal, turning a cost into a revenue-producing action, as John McCormack notes at The Weekly Standard. If the transactions of human flesh don’t count as profit, they at least reduce cost.

Selling human organs and tissue for profit violates federal law. However, the law also allows for compensation for the costs to produce the tissue, a point that Planned Parenthood and its defenders have raised repeatedly since the videos started emerging. Does this fit within the law, or do Planned Parenthood and its buyers cross the line? The New York Times calls this “a gray zone, legally,” but does concede that the videos raise questions about “what the law allows.”

Certainly, Congress should look into how its exceptions for tissue donation have been exploited. But this isn’t the main issue seen in these videos.

Planned Parenthood wants to keep the debate on these points to deflect from the real debate – the nature of abortion itself, and the deliberate minimization in language that has allowed it. Abortion defenders claim that the procedure does not terminate life, and that it has no more moral meaning than excising a tumor or a cyst, a “clump of cells” in the most common construction. On Twitter, a young actor in Hollywood offered a more crude assessment this week. “A pile of goop should not have more rights than a human being,” Lucas Neff tweeted, “period.”

Now, though, we see that the same abortion clinics that argue for the “pile of goop” status see things very, very differently when it comes time to benefit from the results of their services. They adjust their techniques to extract and market human organs for buyers to meet demand, with the clear value attached on the basis of both their humanity and specificity. Clinic executives like Dr. Ginde want to negotiate those markets on a per-item basis because of the value that humanity and specificity provides to both parties, “just because we can see how much we can get out of it.”

The true danger to Planned Parenthood and the entire industry is the exposure of their hypocrisy. The two positions of “clumps of cells” and negotiating over human organs from abortions are mutually exclusive. One cannot extract human organs from “a pile of goop,” or from tumors or undifferentiated “clumps of cells.” Human organs come from human beings, and the only way to harvest them from unborn human beings is to kill them first. The videos cut through all of the misdirection, all of the antiseptic generalities used in defense of abortion, to expose its true nature – and that’s what has Planned Parenthood panicked over the videos.

For those who oppose abortion, the debate over sales of human organs and tissue is very tempting, and certainly should be engaged. However, the focus should be on the admitted humanity of those whose lives come to an end in those clinics rather than the legal technicalities of compensation and sales for the “products” that result from them. Expose the lie, and let’s finally have the conversation about the value of human life in all its stages that we have spent the last 42 years avoiding.  [Edward Morrissey, “How the Planned Parenthood Videos Expose Abortion for What It Truly Is,” The Week, July 29, 2015]

CONTENT WARNING:  The remainder of this article contains content material and references video footage that is offensive and shocks the conscience. The videos show Planned Parenthood staff sorting body parts such as kidney and heart from an 11-week human fetus. It includes admissions that some of the aborted fetuses are not yet dead but that they are subsequently terminated and then harvested for organs and tissue.

On July 30, the fourth video was released by The Center for Medical Progress. The video opens with a negotiation between Vice President and Medical Director of Planned Parenthood of the Rocky Mountains Dr. Savita Ginde and a potential buyer for fetal body parts. Ginde is seen saying, “I know I’ve seen livers, I’ve seen stomachs, I’ve seen plenty of neural tissue. Usually you can see the whole brain usually come out.”

To preserve the organs, Ginde says that “we’d have to do a little bit of training” to ensure staff “didn’t crush” the parts that were wanted. Ginde warned about legal risks saying “if you have someone in a really anti [abortion] state that’s going to be doing this for you, they’re probably going to get caught.” She continued that they told their lawyer that, “we don’t want to get called on selling fetal parts across states.”

Live Action News, on July 30, reported and summarized the video as follows:

The video then cuts to the laboratory where a Planned Parenthood technician can be seen sorting through parts of aborted babies. Dr. Ginde tells the prospective buyer that they would likely structure the arrangement on a “per item,” rather than a flat fee:  “I think a per-item thing works a little better, just because we can see how much we can get out of it.”

The video can be viewed on YouTube:  https://www.youtube.com/watch?v=GWQuZMvcFA8

During the parts-sorting process of child terminated in the first trimester, Ginde notes, “Here’s a stomach, kidney, heart.” She further explains that the second trimester babies are “so big” that they won’t “be as war-torn.”  An unnamed technician later exclaims, “And another boy!” after finding a body section with legs.

Live Action President Lila Rose issued a strong statement blasting the unethical and improper behavior of Planned Parenthood: “Even as more tapes emerge of top-level Planned Parenthood executives bartering and negotiating over the parts of aborted children, our nation will fund Planned Parenthood with over 1.4 million dollars today alone. As the outrage only continues to grow, Congress and the President must act immediately to stop the forced taxpayer funding of these horrific and barbaric facilities.”

In the first shocking video, which has been viewed almost 3 million times, Planned Parenthood Senior Medical Director Dr. Deborah Nucatola discusses the potential sale of fetal body parts.  This first video can be viewed on YouTube – https://www.youtube.com/watch?v=jjxwVuozMnU.

The second shocking video was released on July 22 and shows a Planned Parenthood official haggling over the price of aborted baby tissue and body parts. During the gruesome conversation, Medical Directors’ Council President, Dr. Mary Gatter, even jokes that she wishes to buy a Lamborghini with the profits.  The second video can be viewed on YouTube –  https://www.youtube.com/watch?v=OGwV4NnJoCw.

The third video is perhaps the most graphic and gruesome of all. It shows the harvesting of the unborns’ organs. The video can be viewed at:  https://www.youtube.com/watch?v=jugZUvs0-y8.

Congress is conducting an investigation into the scandal, while President Obama remains silent on the matter. A measure has been introduced in the U.S. Senate by Joni Ernst, Rand Paul, and James Lankford to defund Planned Parenthood of taxpayer support. Senator Lankford remarked that, “It is time for federal taxpayer funding for Planned Parenthood to end and let community health centers use that funding to provide health care services for those in greatest need.”

The states themselves are conducting investigations as well. To date, Planned Parenthood has refused to appear and testify.

The full-length video exposing Planned Parenthood’s use of partial birth abortions to harvest and sell baby parts is over two hours and can be viewed on YouTube –https://www.youtube.com/watch?v=H4UjIM9B9KQ.

On February 26, 2015, former director of Planned Parenthood who became a pro-life advocate, Abby Johnson, appeared on the Mike Huckabee Show. In the interview, she went into great detail on the horror that she saw during an abortion procedure and described how she watched an unborn baby fight for its life.  Her interview can be seen at:  https://www.youtube.com/watch?v=6Rx8hL4QSEs.

We cannot meaningfully address the moral blight of our time – abortion (equating it with a woman’s right of equality and choice) WITHOUT discussing its prevention: (1) shifting our social and cultural norms such that sex is not as pervasive, expressive, and cavalier as it has become;  (2) making birth control mandatory OR emphasizing/teaching abstinence;  (3) teaching in our schools what exactly happens to a fetus when a woman aborts it; and  (4)  empowering religious institutions in our communities to help raise our children with values that promote life, health, and dignity, and which further a culture of morality which our country is so sorely lacking.

National sins bring national calamities. We saw that with our first national sin – slavery.  In 1773, probably one of our most prophetic Founding Fathers, George Mason, wrote: “Slavery is that slow Poison, which is daily contaminating the Minds & Morals of our People. Every Gentlemen here is born a petty Tyrant. Practiced in Acts of Despotism & Cruelty, we become callous to the Dictates of Humanity, & all the finer feelings of the Soul. Taught to regard a part of our own Species in the most abject & contemptible Degree below us, we lose that Idea of the Dignity of Man, which the Hand of Nature had implanted in us, for great & useful purposes. Habituated from our Infancy to trample upon the Rights of Human Nature, every generous, every liberal Sentiment, if not extinguished, is enfeebled in our Minds.” At the Philadelphia Convention in 1787, he warned that the newly-organized Union of states MUST abolish slavery or face the wrath of our Creator: ““Every master of slaves is born a petty tyrant. They bring the judgment of Heaven on a country. As nations cannot be rewarded or punished in the next world, they must be in this. By an inevitable chain of causes and effects, Providence punishes national sins by national calamities.”

Mason speaks to the universal truth bespeaks the universal truth that civilizations go through a repeatable cycle which transitions from slavery to freedom and back to slavery (or other form of bondage). This is perhaps true because of the very predicable nature of man himself. It follows from the duality of human nature that man is capable both of moral greatness as well as moral degeneracy. That duality is tempered by the fact that the desire for freedom is universal in all human beings, whether they live moral lives or not, and eventually then those same human beings become complacent in that freedom and allow themselves to become too degenerate to preserve that freedom.

When a segment of society can be sacrificed for the benefit of another, then we have to question our notions of freedom and equality, and moreover, we have to fear the wrath that only a universal judge can exact.

References:

Mike Church, “The Daily Republican, July 30, 2015.  Referenced at:  http://us4.campaign-archive2.com/?u=a7c67a0257f1fe4769a31f098&id=27e248fbf7&e=b300ce6512

Edward Morrissey, “How the Planned Parenthood Videos Expose Abortion For What It Truly Is,” The Week, July 29, 2015.  Referenced at:  http://theweek.com/articles/568788/how-planned-parenthood-videos-expose-abortion-what-truly

Live Action News, July 30, 2015.  Referenced at:  http://liveactionnews.org/planned-parenthood-baby-parts-scandal-grows-as-new-tape-released

Abby Johnson on the Mike Huckabee Show –  https://www.youtube.com/watch?v=6Rx8hL4QSEs

The Planned Parenthood videos:

The first video – https://www.youtube.com/watch?v=jjxwVuozMnU

The second video –  https://www.youtube.com/watch?v=OGwV4NnJoCw

The third video –  https://www.youtube.com/watch?v=jugZUvs0-y8

The fourth video –  https://www.youtube.com/watch?v=GWQuZMvcFA8

The full-length video expose on Planned Parenthood –  https://www.youtube.com/watch?v=H4UjIM9B9KQ