Who says we need to wait half a century to correct bad judicial opinions? Judge Henry Hudson of Virginia had the humility to admit his error just eight days later. Will other judges learn?
Last Monday, Judge Hudson issued a preliminary injunction against Virginia’s long-standing requirement that only licensed physicians may perform abortions. As I reported last week, that ruling was a straight-up violation of Supreme Court precedent not just on abortion, but on states’ powers to require that only licensed professionals perform an array of services, whether one agrees with their determinations or not. Instead, Hudson blithely dismissed any evidence of the need for a licensed physician to perform even the most dangerous surgical abortions, such as dilation and evacuation procedures.
Well, in an extraordinary reversal, Hudson issued an order on Tuesday admitting his error and vacating the original injunction. “On further review, the Court is of the opinion that summary judgment was improvidently awarded to the parties on Count IV based on the present record,” wrote Hudson in the order, reported by the Washington Post. “Rather, on further consideration, whether the ‘Physicians-Only Law’ presents an undue burden to Virginia women who seek an abortion is a material fact that is genuinely in dispute.”
Thank God Hudson doesn’t subscribe to the rules of the ancient Persian government described in the book of Esther (9:8), “For a writ that is written in the name of the king and sealed with the king’s ring cannot be rescinded.”
This is welcoming news to those who are looking for some humility from the courts. We all understand that when legislatures pass bad laws or executives enact bad policies, there is robust public debate, and they are often forced to changes course in the face of widespread backlash. Yet we are told that somehow a single judge can flick his pen at any moment and nullify or legislate policies as even hundreds of legislators don’t have the power to do – and that somehow such an order is self-executing, universally binding, and irreversible.
Hudson should be applauded for recognizing that one man cannot substitute his judgement on a fundamentally political question for the democratically elected legislature. One can only hope he will come to the same conclusion when the trial begins next week on the underlying case.
What is so important about this turnaround is that it demonstrates that judicial opinions are just that: opinions. They frequently decide whether to convict a criminal or award judgement in civil cases, but they are not the sole and final arbiter of broadly consequential political questions when they intersect with powers of other branches of government. The public should actually investigate these opinions and examine them for truth rather than taking them as the word of God.
This was the point Abraham Lincoln kept making to Stephen Douglas during their famous Senate debates in 1858 over slavery in the territories and the Dred Scott ruling from the Supreme Court. Lincoln derided Douglas for hiding behind a court opinion, “which he adheres to it, not as being right upon the merits … but as being absolutely obligatory upon every one simply because of the source from whence it comes.”
“It marks it in this respect, that [Dred Scott] commits him to the next decision, whenever it comes, as being as obligatory as this one, since he does not investigate it, and won’t inquire whether this opinion is right or wrong,” said Lincoln of Douglas during their fifth debate at Galesburg, Illinois, on October 7, 1858. “So he takes the next one without inquiring whether it is right or wrong. He teaches men this doctrine, and in so doing prepares the public mind to take the next decision when it comes, without any inquiry.”
This is what is so important about states like Alabama reclaiming their legislative authority to regulate abortion. Roe v. Wade was a judgment – an erroneous judgment – to a specific plaintiff, not a law and not the word of God. The same holds true for courts’ crazy rulings on marriage, sexuality, election law, and immigration. It’s time we have robust policy debates over political matters and reclaim that power from the courts. It’s time we actually inquire and investigate the true meaning of our Constitution, our history, and our traditions against radical court rulings. We have known hundreds of legislatures to get policy issues wrong in the past quite often. That certainly holds true for single judges or panels of three or nine.
As Lincoln said of Douglas during their first debate, “A decision of the court is to him a ‘Thus saith the Lord.’ Lincoln expressed his frustration: “I cannot shake Judge Douglas’s teeth loose from the Dred Scott decision. Like some obstinate animal (I mean no disrespect), that will hang on when he has once got his teeth fixed; you may cut off a leg, or you may tear away an arm, still he will not relax his hold.”
Hopefully, Judge Hudson has taught the public that a federal judicial ruling is indeed not a “thus saith the Lord.” And in fact, as it relates to abortion, it’s against the word of the Lord and our Constitution and has no shred of legitimacy binding the states or other branches of the federal government to its errors.
Daniel Horowitz is a senior editor of Conservative Review. Follow him on Twitter @RMConservative.