Earlier this month, the Supreme Court redefined human sexuality. Then it forced Trump to temporarily maintain an Obama policy unilaterally redefining citizenship. Today, a 5-4 majority of the court built the next layer of the abortion industry edifice consuming our Constitution. In this case, murdering unborn babies is such an unassailable right that third-party organizations can get standing to “strike down” commonsense state laws simply requiring that doctors obtain admitting privileges in local hospitals to perform baby-killing operations.
This was not just a betrayal by John Roberts. The Louisiana case before the Supreme Court, June Medical Services LLC v. Russo, actually demonstrates that Republican-appointed justices, aside from Clarence Thomas and maybe one other, will never overturn even recent expansions of abortion “rights,” much less the foundation of Roe and Casey.
During a time when we are told states can do anything they want to protect public health, Louisiana passed a commonsense law requiring that abortion providers have admitting privileges at nearby hospitals within 30 miles of the abortion clinic. John Roberts, while admitting that he previously voted to uphold such a law in Texas, joined with the judgment of the four Democrat appointees to rule that somehow the Constitution prohibits a state from passing such a law.
“I joined the dissent in Whole Woman’s Health and continue to believe that the case was wrongly decided,” wrote Roberts in his concurrence in the June judgment. “The question today however is not whether Whole Woman’s Health was right or wrong, but whether to adhere to it in deciding the present case.”
The 2016 Hellerstedt decision stated that that states can’t “burden” abortion “rights” with certain health care regulations, such as requiring abortion clinics to meet the health standards for ambulatory surgical centers and requiring doctors at the facilities to have admissions privileges at a hospital within 30 miles.
Thus, as I’ve warned multiple times, not only will many Republican-appointed judges refuse to overturn bad precedent from decades ago, they won’t even reverse recent decisions expanding on that bad precedent. We have witnessed this with Roberts on numerous opinions where former Justice Kennedy was the fifth vote for the Left – and Roberts even wrote the dissent in that case – yet once it “passes,” he will never reverse it. Precedent is a one-way street. The left wing can overturn it after 200 years, but once it does so even once, Republican judges will worship it as God’s word.
Kermit Gosnell, who is currently serving a life sentence for three counts of murder and other charges, spent years performing abortions on low-income women of Philadelphia in unsanitary conditions with little emergency access while conducting illegal experiments on women and unborn children. This has prompted states to toughen standards on abortion clinics as they would any health care facility that suffered from a similar scandal. Yet the courts have screwed with almost every regulation.
The notion that such regulations are beyond the scope of state power – even if one were to agree to the phantom individual right to an abortion – is lunacy.
Once again, we see vividly that once the other branches of government have ceded every issue to the federal courts, everything goes when it comes to their preferred policy outcomes. Judges don’t even follow their own precedents. Once we grant judges the right to unilaterally make law, set morals, and remake culture, what is to stop them from changing the rules midway? In the landmark Planned Parenthood of Southeastern PA v. Casey ruling affirming the individual “right” to an abortion, the court made clear that states could still regulate the health care standards for performing abortions. “The Constitution gives the States broad latitude to decide that particular functions may be performed only by licensed professionals, even if an objective assessment might suggest that those same tasks could be performed by others,” wrote Justice O’Connor in the 1992 abortion case upholding a state’s ability to require that licensed physicians provide all relevant information in counseling on abortions.
Indeed, states regulate the standards for licensed professionals all the time – everything from lemonade stands to mowing grass – even when “an objective assessment might suggest that those same tasks could be performed by others.” But when it comes to the sacred ideals of abortion, the state is somehow powerless to regulate.
Think about how this same Supreme Court has allowed states to infringe upon every aspect of the Second Amendment, even though it is codified unambiguously in the Constitution with the dictate of “shall not be infringed.” The Supreme Court has also greenlighted every state restriction on freedom to go to church, freedom to open a business, and now freedom to walk around without a mask. Why does the “right to privacy” only apply to killing a baby or even to a doctor’s “right” to assist in that without admitting privileges – yet you don’t have the right to privacy not to walk around without a mask in the 100-degree weather? I guess some public health safety measures are more equal than others.
The answer going forward is for us to scrap judicial supremacism. Instead, watch for phony conservatives to promise even more “conservative” judges come next year. The problem is that we don’t have four votes to overturn Roe either. Only Thomas once again affirmed that Roe is a complete myth. No other justice joined his dissent. They all wrote dissents focusing on how there should be no standing in this case. Kavanagh focused on how it wasn’t even clear that the doctors in the case would have been denied admitting privileges if they applied for them. Gorsuch and Kavanagh joined Alito’s dissent suggesting that this case should be remanded and judged by a different standard, rather than Thomas’ dissent suggesting that this entire case should be thrown out – along with every case predicated on a right to murder.
It’s not that these justices are wrong, but once again, they refuse to show their cards. It’s not even clear how many of them, aside from Alito and maybe Gorsuch, would overturn Hellerstadt on principle without these technicalities, much less Roe. We don’t know how Kavanagh would vote in a similar case, especially given his obsession with precedent.
Why is it that we can’t get a straight answer out of Republican nominees on whether they believe in something so absurd as a constitutional right to an abortion or even a right to perform one under all circumstances? This is true not just during confirmation but even years after they are on the court. The Left is always sure. Therein lies the asymmetry of outcomes we will continue to suffer from.
Anyone who really wants to protect life but is selling you a bill of goods that the courts, which caused this problem to begin with, will suddenly solve it, is pitching you a scam. The real solution is to assert, as Lincoln did, that each branch of government gets to use its own powers in accordance with the way it interprets the Constitution. Conservatives should promise to use the other two branches to block enforcement of these court opinions the same way the court tries to block the laws’ implementation. We have three co-equal branches of government that go around in a circle, not one branch that stands atop the pyramid of governance.
As Edward Bates, President Lincoln’s attorney general, stated in his letter on the power of the courts, “It is the especial function of the judiciary to hear and determine cases, not to ‘establish principles’ nor ‘settle questions,’ so as to conclude any person, but the parties and privies to the cases adjudged.”
So ask all those who celebrated Juneteenth this year to commemorate the emancipation of slaves: Was Lincoln wrong to go against the Supreme Court’s wrong Dred Scott decision and actually follow true principles of natural rights? I think we know the answer to that question.
Daniel Horowitz is a senior editor of Conservative Review. Follow him on Twitter @RMConservative.