In the most consequential abortion decision since 1992, the Supreme Court struck down a Texas law regulating the public safety of abortion clinics. In a 5-3 decision with Justice Breyer writing for the majority in Whole Woman's Health v. Hellerstedt, the high court reversed the Fifth Circuit and invalidated Texas’s HB 2, which required abortion clinics to meet the health standards for ambulatory surgical centers and required doctors at the facilities to have admissions privileges at a hospital within 30 miles.
Whole Woman’s Health v. Hellerstedt
After concocting a Fourteenth Amendment right to an abortion at almost any stage out of whole cloth in Roe v. Wade and Casey, the court now holds that any basic, prudent and clearly constitutional state regulation addressing safety concerns at abortion facilities that in any way results in a decrease in the number of abortions performed is “unconstitutional.”
Justice Thomas begins his dissent by noting how the majority on the court tends to bend the rules when one of their favored “rights” is at stake:
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.
Yet, once a woman has been granted a constitutional right to an abortion, third parties can now sue on her behalf.
Connected to the issue of standing on behalf of others is the issue of access to abortions. The court has made it clear in this decision that the courts, not state legislatures, determine the scientific and medical analysis behind regulating abortion clinics in order to achieve the desired outcome: full access to abortions by any third party provider that desires to operate in the field. Remember, states have plenary power over regulating doctors and medical certifications within their respective states, yet the court made it clear they will step in to invalidate those laws if [even third party] plaintiffs can show that they will lead to a decrease in the number of abortions.
In a dissent that is full of quotes from the late Justice Scalia, Thomas concludes with a quote from his former senior colleague:
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 “a regrettable concession of defeat—an acknowledgement that we have passed the point where ‘law,’ properly speaking, has any further application.
It is truly shocking how far we have fallen as a Republic. At the time of the adoption of the Fourteenth Amendment in 1868, 36 states and territories had laws on the books banning abortions. Yet, we are told that the Constitution, and even the Fourteenth Amendment as originally conceived, is unconstitutional and preempted by the evolving interpretation of the 14th Amendment, which is rooted in nothing but the political imagination of the judges. Now that has transmogrified to a right to operate abortion clinics that have sub-standard health care.
Justice Alito, who authored the main dissent (which was joined by Thomas and Roberts) focused on several other aspects of the court’s tendentious treatment for abortion plaintiffs. The court violated a principle of “res judicata, namely, that a plaintiff who loses in a first case cannot later bring the same case simply because it has now gathered better evidence.” Given that this case was already heard by a trial court and the plaintiffs lost in the Fifth Circuit, opting at the time not to pursue an appeal to SCOTUS, were precluded from bringing the case again after they felt they had more evidence that the Texas law would limit the number of abortions in the state.
Additionally, Alito assailed the majority for not applying the principle of upholding the remaining parts of the Texas law, which were not challenged in the lawsuit, given that the law was written with a proper severability clause. The overarching message of the majority, as observed by Thomas and Alito, was that if the end goal is an abortion right, any and all rules governing judicial proceedings can be vitiated.
Furthermore, while opponents argue that admitting privileges and ASC requirements are just “scams” to limit access to abortion, they would do well to remember that sacrificing women’s health at the altar of “reproductive rights” is the exact same kind of thinking that allowed Kermit Gosnell to continue his horrific practices in Philadelphia for years without scrutiny. 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.
The notion that such regulations are beyond the scope of state power – even if one were to accede to the phantom individual right to an abortion – is lunacy.
The intellectual dyslexia of the judiciary is breathtaking. States have now been granted a power to blatantly discriminate based solely on race. They have been allowed to violate the right to bear arms and own common fire arms, an inalienable right enshrined into the Constitution. Yet, they can’t regulate the public safety of abortion clinics nor define a marriage as a union between a man and a woman.
This is the perverse nature of entrusting the legal profession as the final arbiter of fundamental rights and all societal and political issues.
A Harbinger of the Future
Many conservatives will conclude from here that the coming election is all the more important in shaping the balance of the court. This case demonstrates the folly of that line of thinking for several reasons.
- As is most often the case concerning the fabrication of new rights, Justice Kennedy was with the four impervious leftists. Thus, even if we successfully fill Scalia’s seat with an originalist, they will still have a 5-4 majority in most cases.
- So many of these cases are decided in the lower courts, and even those that make it to the Supreme Court are often influenced by the momentum of the lower courts. As I’ve noted on many occasions, the lower courts are even worse than the Supreme Court and that is not going to change any time this generation. Texas is lucky that it is under the jurisdiction of the one remaining originalist-majority circuit – the Fifth Circuit Court of Appeals. That is why this case went so far. On the other hand, lower courts recently struck down North Dakota’s ban on abortions performed after six weeks of pregnancy and even Arizona’s law banning abortions after 20 weeks of pregnancy. The Supreme Court refused to grant cert to those appeals, which means there were no more than three justices willing to overturn the lower courts even with Scalia alive.
- Only Justice Thomas was willing to fully uphold the Texas laws. Justices Alito and Roberts would have remanded the case back to the lower courts to better analyze the effects of the law in limiting access to abortion. Now, it could be that they still fundamentally oppose the entire abortion jurisprudence and were just playing within the sand box created by Roe and Casey, albeit with a more milquetoast approach than Thomas. But it is quite likely, especially in the case of Roberts, that he would not overturn Roe v. Wade. This is the fundamental problem with those who believe we can win the “judicial game” by appointing better justices. There is enough existing “jurisprudence” to destroy every facet of the Constitution based on liberal precedent, and there are few judges like Thomas who are willing to go back to the original Constitution, even if it means countermanding decades of odious precedent.
The Path Forward
This is why I’m excited to announce the release of my new book, “Stolen Sovereignty: How to Stop Unelected Judges from Transforming America,” on July 19. The courts are irremediably broken and it’s time Congress exercise its power to regulate the jurisdiction of the court. Broad societal questions, such as abortion, gay marriage, and religious liberty should not be entrusted to the courts, especially given that they have insurmountable majorities that will likely expand the backwards post-constitutional jurisprudence and will certainly apply the existing precedent. In this case, for example, Congress could strip the courts of any jurisdiction to hear cases overturning state laws regulating abortion. State courts could still hear those cases and it would be up to state legislatures to reform their own state judiciaries. But there is a solution on the federal level and it’s high time we exercise it.
It's also high time for some long-term solutions to restore our right to self-governance and restore state power. As Mark Levin laid out in “Liberty Amendments,” we need a convention of the states with a targeted agenda to reclaim that power for the people and the states. One of them is granting both Congress and the state legislatures the authority to overturn court decisions with the vote of three-fifths of both houses of Congress or state legislative bodies. Between the power to regulate jurisdiction, which is already in the Constitution, and the new initiative to overrule decisions, the court will be restored to its proper role of interpreting the application of statutes and its very limited original jurisdiction.
Or, we can just sit back and watch social transformation without representation and allow Anthony Kennedy to serve as king.
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