Archive for the ‘Supreme Court’ Category

Exposing the Ugly Ideology of Abortion

Wednesday, May 29th, 2019

The recent spurt of pro-life legislation on the state level has gotten a great deal of attention. That also means that more and more attention will be focused on the abortion cases that will come before the Supreme Court.

The latest case produced a disappointing result. Formally called Box v. Planned Parenthood, it involved two laws from Indiana, one that required a respectful disposition of the human remains produced by abortion, and the other banning abortions motivated by race, sex or disability. The Court of Appeals for the Seventh Circuit struck down both laws based on the Supreme Court’s prior abortion decisions, and the state then asked the Supreme Court to take the case.

There was a great deal of anticipation that this case might provide a vehicle for the Court to revisit its abortion jurisprudence, perhaps to expand the ability of legislatures to regulate it or even to review or reverse Roe v. Wade. Those hopes turned out to be unfounded. The Court did reverse the lower court and reinstated the human remains law. This is a good result – the more respect we show for human remains, the more respect we show for the humans who have died. This law thus serves a good purpose of reminding us of the humanity and dignity of unborn children.

But the unanimous Court refused to consider or reinstate the anti-discrimination law. It thus remains permissible to abort a baby solely because it is black, female, or has a disability or some unwanted trait. This is a tragic missed opportunity.

Nevertheless, there was a very important part of this decision – the concurring opinion of Justice Clarence Thomas. He is a vastly underrated jurist. If one were to listen to the media, the only thing he is known for is his silence during oral arguments before the Supreme Court or the controversy that arose during his confirmation. But in reality, he is a man of great intellect, principle and integrity, and his opinions are always worth reading because they are so well-done, and so clear about the authentic meaning of the Constitution.

In this case, Justice Thomas took the Court – and our nation – to school about the evil eugenics movement, and its historic and continuing involvement in the effort to keep abortion legal. He specifically called out the malign roots of Planned Parenthood and the appalling values of Margaret Sanger and other major figures in the birth control, pro-abortion, and eugenics movement.

Justice Thomas’ opinion is worth reading in full, but I will quote some of its most important parts that dealt with the anti-discrimination law. (Justice Thomas’ words will be in italics, I have done some mild editing).

The basic premise of the case was presented very plainly: this law and other laws like it promote a State’s compelling interest in pre­venting abortion from becoming a tool of modern-day eugenics.”

Make no mistake about eugenics. It is an inherently evil mindset, and typically uses language that would horrify modern readers. For example, as Justice Thomas noted: “As a social theory, eugenics is rooted in social Darwinism — i.e., the application of the ‘survival of the fittest’ principle to human society.” Sanger herself was an enthusiastic supporter of eugenics and was openly in favor of limiting the ability of certain parts of the population to reproduce because the unbalance between the birth rate of the ‘unfit’ and the ‘fit’ was ‘the greatest present menace to civilization.'” (quoting Sanger)  This repulsive notion that there is “too many of them” is at the heart of eugenics.

This “threat” perceived by the eugenicists was unabashedly racist. “Many eugenicists believed that the distinction between the fit and the unfit could be drawn along racial lines”. Sanger herself particularly targeted black communities for birth control, and even initiated a “Negro project” to promote a reduction  in black births. She was once famously photographed giving a speech to a group of the Ku Klux Klan and bought off black ministers to allay the concerns of their flocks. In [Sanger’s] view, birth-control advo­cates and eugenicists were ‘seeking a single end’ — ‘to assist the race toward the elimination of the unfit.'” (quoting Sanger)

But eugenics was not just racist – it sought to eliminate other people deemed unacceptable or flawed. “Although race was relevant, eugenicists did not define a person’s ‘fitness’ exclusively by race. A typical list of dysgenic individuals would also include some combination of the ‘feeble-minded,’ ‘insane,’ ‘criminalistic,’ ‘de­formed,’ ‘crippled,’ ‘epileptic,’ ‘inebriate,’ ‘diseased, ”blind,’ ‘deaf,’ and ‘dependent (including orphans and paupers).” You can imagine how such invidious and subjective terms would be interpreted by ideologues obsessed with purifying the race. Indeed, this attitude was so widespread in the early part of the 20 th Century that it led to the enactment of eugenic laws in a majority of the states (including New York) and the involuntary sterilization of over 60,000 Americans – the last one as recently as 1983.

It also led directly to the legalization of abortion. Justice Thomas noted that “From the beginning, birth control and abortion were promoted as means of effectuating eugenics.” In fact, “some eugenicists believed that abortion should be legal for the very purpose of promoting eugenics.”Noted figures affiliated with Planned Parenthood were explicit in pursuing these goals.

It must also be clear that we are not just talking about abstract principles, possible future horrors, or ancient history. We are talking about current events . “This case highlights the fact that abortion is an act rife with the potential for eugenic manipulation.” At the present time, from around the world, “a growing body of evidence suggests that eugenic goals are already being realized through abortion.”

Justice Thomas specifically cited horrifying statistics about the systematic genocide of children with Down Syndrome: 100% in Iceland, 98% in Denmark, 90% in the United Kingdom, 77% in France, and 67% in the United States. Any woman who has had an adverse fetal diagnosis knows this – the pressure to terminate the pregnancy begins immediately upon delivery of the news. He also noted the widespread incidence of sex-selection abortions in Asia, which “have led to as many as 160 million ‘missing’ women—more than the entire female population of the United States.”  So much for pro-abortion advocates being pro-woman.

And he also highlighted the disproportionate impact of abortion on American blacks. The extremely high abortion rate among blacks in our nation is 3.5 times higher than among whites, and in some areas of New York City there are more abortions than live births among blacks. Justice Thomas sardonically noted that insofar as abortion is viewed as a method of ‘family planning,’ black people do indeed take the brunt of the planning.” Usually, such a disproportionate impact would lead to outcries against racist policies. Yet when it comes to abortion, those voices are strangely silent.

When this anti-discrimination law was enacted, Planned Parenthood promptly filed a lawsuit to block the law from going into effect, arguing that the Constitution categorically protects a woman’s right to abort her child based solely on the child’s race, sex, or disability”. Consequently, the position of Planned Parenthood and all those pro-abortion advocates who stood with them would constitutionalize the views of the 20th-century eugenics movement”. This is directly contradictory to the herculean efforts in our nation over the past decades to eliminate racist, sexist and anti-disability discrimination in all other areas of the law and society. That is the price that pro-abortion forces want us to pay, to keep abortion legal.

In his opinion, Justice Thomas did the nation a great service by tearing back the curtain that hides the true wickedness of the pro-abortion movement. Unfortunately, the Supreme Court – including those Justices who are considered pro-life – has once again shown that it has no enthusiasm for revisiting or overturning the evil abortion regime it established in Roe or repudiating the ugly legacy of eugenics.

The battle for a Culture of Life goes on.

A Bold But Risky Step on Abortion

Thursday, May 16th, 2019

The State of Alabama has taken a bold step, enacting a law that would ban virtually all abortions. The new law has generated a great deal of controversy, as one might expect. Abortion is becoming a “zero sum” issue in our political culture – with the choice being made to look as if it is between either maximum protection for the unborn child or unlimited license for a woman to have an abortion.

Pro-lifers are hoping that this new law may be the vehicle for the Supreme Court to overturn Roe v. Wade. Other laws have also been passed recently and may reach the Court, like those banning abortion after a fetal heartbeat can be detected (about 7 weeks) or after an unborn child can feel pain (about 20 weeks).

Based on the current composition of the Supreme Court, I’m dubious that they are ready to overturnRoe. There’s only one Justice (Thomas) who has indicated that he would do so, and there are at least four (Kagen, Breyer, Ginsburg and Sotomayor) who certainly will not. We don’t have any real idea how the two newest Justices (Kavanagh and Gorsuch) will approach the issue, nor is it by any means clear that Chief Justice Roberts or Justice Alito will vote to overturn Roe.

So it’s possible, but in my view it’s a long shot. There’s also a major risk that the Court could make the law even worse than it currently is. This involves some legal “inside baseball” considerations, so let me explain.

Right now, the Court’s abortion rulings are based on the unenumerated (i.e., not specifically listed in the Constitution) “right to privacy” that is protected under the Due Process Clause of the Fourteenth Amendment (“…nor shall any state deprive any person of life, liberty, or property, without due process of law”). This approach to constitutional law, which is called “substantive due process”, is how the Supreme Court in Roe invented the right to an abortion.

The origin of these unenumerated rights is hotly contested among legal scholars. We would point to their origin in natural law/natural rights, which were understood in the English legal tradition as coming from God, and which are inherent in the nature of the human person and society (as the Declaration of Independence put it, they’re “inalienable”). In this view, the state doesn’t create these rights, but is instead bound to recognize and protect them. Ironically, the “substantive due process” principle that led to Roe is also a kind of natural law argument, but it is a distorted one based on a twisted understanding of human nature and society, since it holds that personal autonomy is the highest value.

Regardless of where these rights come from, the key legal battle is over what standard the courts will use to evaluate any law that has an effect on them. In the case of Planned Parenthood v. Casey, the Court set out the test for whether an abortion regulation would violate that right. The key rule is that prior to fetal viability, there can be no prohibition of abortion, and any regulation will be struck down if it imposes an undue burden on the woman’s ability to obtain an abortion. The Court said that this standard evaluates whether the regulation has “the effect of placing a substantial obstacle in the path of a woman’s choice”. In a later case, the Court read this amorphous “undue burden” standard so broadly that it would appear to endanger virtually any regulation ( Whole Women’s Health v. Hellerstedt).

As problematic as the “undue burden” standard may be, it still permits pro-lifers to argue for the validity of a whole host of abortion regulations. States have passed many such bills, including requiring hospital admitting privileges for abortion doctors, health and safety regulations, outlawing particularly cruel methods of abortion, and banning discrimination against unborn babies with disabilities. All of these are step-by-step methods to enact real protections and to advance a greater social acceptance of the dignity of human life.

In my view, passing laws that outright prohibit all or most abortions is risky as being “too fast, too soon”, given our current social and legal attitudes and values. The danger is that the Court may decide (as Justice Ginsburg has suggested, and as the plurality opinion in Casey implied) that the proper place for the protection of “reproductive liberty” is under the Equal Protection Clause of the Fourteenth Amendment (“… nor deny to any person within its jurisdiction the equal protection of the laws”). The argument is that women cannot participate equally in society unless they have the ability to control their reproductive systems, and regulations of abortion limit that ability and thus treat them unequally under the law.

That would be a legal disaster. The Court has already held that sex discrimination is subject to “intermediate scrutiny” under the Equal Protection Clause. This means that any regulation would have to satisfy a test of whether there is an “important state interest” and the regulation is “substantially related” to that interest. In fact, the Court has said that the state must give an “exceedingly persuasive justification” for any classification based on sex. The courts have been very tough in applying that standard in sex/gender discrimination cases, particularly recently in the gender identity cases. I doubt that many abortion regulations would survive this test.

Even worse, going to the Equal Protection Clause would invite the Court to decide that “reproductive liberty” is a “fundamental right”. That means that the courts will apply an extremely stringent “strict scrutiny” standard that requires proof of a “compelling government interest” and that the law be narrowly tailored to meet that interest. In practice, a strict scrutiny standard is a death sentence to regulations.

We have to recognize that lower federal courts and many state courts are still hostile to us despite many good appointments by the current President. The legal community and academia have been deeply corrupted by the flawed jurisprudence and politics of “reproductive rights”. Convincing courts to uproot the poisoned doctrines of Roe and Casey will be a very difficult task, and would create a political firestorm.

The goal of protecting every human life is shared by every pro-lifer. But politics is always an area for prudence, meaning that we must be careful in the way we advance our values so as not to make things worse, even as we try to make them better.

The Supreme Court Nominee’s Error about Roe v. Wade

Wednesday, August 22nd, 2018

We are once again in the midst of the circus leading up to confirmation hearings for the new Supreme Court nominee. Judge Brett Kavanaugh is making the rounds of the Senate, speaking to the Senators who will consider his nomination, and seeking to woo some of the potential swing votes in his favor. It’s the standard ritual, with all the usual photo ops, pre- and post-meeting press comments, etc. Little of any substance usually comes of these things.

But today, something of significance came out of the meeting between the nominee and a Republican Senator who considers herself to be “pro-choice”. After the meeting, the Senator said that the nominee called the infamous Roe v. Wade decision to be “settled law”. Presumably this is an accurate account of their conversation, because neither the nominee nor his handlers have disputed the Senator’s account.

This is very unsettling to hear from a Supreme Court nominee. We have heard it before, and it is a clear indication that the nominee has no real interest in overruling Roe. Chief Justice Roberts and Justice Gorsuch both called Roe “settled law” during their own confirmation hearings, and Justice Alito has said that it has added strength as a precedent because it has survived prior challenges and people have come to rely on it.

This is a terrible way of thinking, and it fails to recognize the fundamental duty of a judge to do justice and to decide cases correctly. An unjust law, or one that is clearly wrongly decided, can never be considered “settled”. And there is no question that Roe v. Wade was wrong as a matter of morality and legal reasoning, and that it is profoundly unjust. Its progeny, Planned Parenthood v. Casey (which really is the controlling law now, not Roe), was also wrongly decided. Both of these cases ruled that there is an entire class of human beings who have no constitutional rights – they have been judicially defined as non-persons, in effect outlaws, and they can be subjected to violence and killing with impunity. It is deeply troubling that the nominee has signaled that he would uphold such a law.

The nominee likes to consider himself an “originalist”, meaning that he believes that the Constitution should be interpreted according to its original public meaning at the time of its ratification. Unfortunately, he doesn’t seem to understand that judges of that time would never have viewed a wrongly-decided case as “settled”. Instead, they would have understood it to be their duty to correct the injustice.

The giant of English legal thinking, William Blackstone, wrote that prior decisions are not controlling if they are “flatly absurd or unjust” or “contrary to reason”. In the words of an great American legal scholar, Chancellor James Kent, “If, however, any solemnly adjudged case can be shown to be in error, it is no doubt the right and the duty of the judges who have a similar case before them, to correct the error”. Throughout our history, the Supreme Court has overruled prior decisions when it is clear that they were wrong or poorly reasoned. Judge Kavanaugh’s originalism clearly is not in keeping with these “settled” legal principles.

In another interview with a Senator, the nominee declined to say whether he thought Roe and Casey were correctly decided. One can understand his reticence, given the politicization of the confirmation process. But his failure to take a stand is incoherent. To believe that a case is “settled law” necessarily means that one believes that it was correctly; if one does not believe that a case was correctly decided, then it cannot be “settled law”. The nominee’s failure to take a stand is simply illogical – it violates the Law of Contradiction (a thing can’t be both A and not-A at the same time) that even lawyers understand very well. In any event, the nominee’s non-position certainly does not show any burning desire to overturn Roe.

So what is the final significance of all this? I have long been certain that the Supreme Court is not going to overrule Roe any time soon. Only Justice Thomas has ever said that he would do so, and all the other “conservatives” are now all on record saying that they believe Roe to be “settled law” or binding precedent. So, regardless of the assurances and wishful thinking of his supporters, I don’t believe that the confirmation of Judge Kavanaugh brings us to the verge of Roe’s much-deserved demise.

That is not to say that I think Judge Kavanaugh will make things worse. I fully expect that he will show respect for the separation of powers and federalism, and that he will vote to permit states to have greater leeway in regulating abortion. That may begin the process of at least limiting the malign effects of RoeCasey. It may also contribute, in the long term, to the rebuilding of a culture of life in the law.

But in the meantime, the idea that the abortion decisions are “settled law” is an awful way of thinking, one that violates the fundamental duty of everyone – including judges – to do justice and act in accordance with the universal natural moral law. That law is “settled” – one may never deliberately take the life of an innocent person and the government has a solemn duty to ensure that all lives are protected from unjust violence.

The Idolatry of Abortion

Wednesday, July 18th, 2018

Once upon a time, people who called themselves “pro-choice” insisted that nobody is really in favor of abortion, but rather they see it as a sad necessity for women who are forced to deal with an unwanted pregnancy. We even heard from President Clinton – and the First Lady – that they thought that abortion should be “safe, legal and rare”. These attitudes reflected the ambivalence of ordinary Americans about abortion. While most people support legal abortion in some cases, most actually oppose it and would impose restrictions on it in most cases.

While the ambivalence of Americans remains, the reticence of abortion rights supporters is long gone. The leading lights of that movement are revealing their true beliefs that abortion is a positive good that is not to be regretted but rather is to be celebrated. We are at the point where there is a virtual idolatry of abortion, where it is seen as a sine qua non for the active participation of women in society.

The nomination of Judge Brett Kavanaugh to the Supreme Court has been the catalyst for an astonishing amount of overheated rhetoric about abortion. We’ve seen claims that his confirmation will lead to the deaths of women, and even the display of the mythical coat-hanger meant to evoke illegal and dangerous abortions that are supposedly just around the corner. The fear-mongering will undoubtedly get even worse once the Senate convenes its confirmation hearings.

The most notable practitioner of waving the bloody shirt has been our Governor. His devotion to legalized and unrestricted abortion is long-standing, and his preference for outrageous rhetoric is well known. This is the man who once said that pro-lifers “have no place in the state of New York, because that’s not who New Yorkers are.”

He is now on the campaign trail pushing for the State Legislature to return to Albany for a special session to “codify Roe v. Wade” in state law. He recently made the bizarre statement that “If Roe v. Wade is overturned, women lose their right to choose in the state of New York today”. He must expect that nobody will actually fact-check him and realize that he is just making things up. The reality is that New York already has one of the most liberal abortion laws in the nation, one that pre-dates Roe and which permitted thousands of abortions prior to Roe. Abortion is available on demand, for any reason whatsoever, at any time prior to 24 weeks of pregnancy, and afterwards if the life of the mother is at risk. Overturning Roe will have no effect whatsoever on that – the vast majority of abortions will still be legal in New York.

The only way that the Governor’s statement makes any sense is when we realize that Roe was the high-point of abortion jurisprudence. It legalized late-term abortion to preserve a woman’s health – a term the Supreme Court defined so broadly that it means any reason whatsoever – and it was used by courts to strike down virtually all regulations on abortion at any stage of pregnancy. So what the Governor is really advocating for is unrestricted abortion and particularly late-term abortions on demand.

And that’s precisely what the Governor’s own abortion expansion bill would do. Back in 2013, the Governor introduced a radical bill as part of his “Women’s Equality Act” that would: expand the availability of late-term abortions on demand; permit non-doctors to do abortions, including late-term abortions; virtually eliminate the ability of the State or local governments to regulate the practice of abortion; immunize from criminal prosecution any person who directly tries to cause the death of an unborn child (e.g., in a domestic violence incident); and severely limit criminal prosecutions of unlicensed “back-alley” abortionists (which is ironic, given all the rhetoric about going back to the days of illegal abortions). That’s not a “pro-choice” bill, it’s the abortion industry’s wish list.

The Governor has also made the deeply weird statement that he will sue somebody for something in some court somewhere if the Supreme Court overturns Roe, and that’s why he really needs the Legislature to pass his abortion expansion bill now. I must have missed the class in law school where that makes any sense at all. Perhaps when the Governor was in law school he missed the class where they taught that the Supreme Court is the highest court in the nation, that there is no appeal to another court from its rulings, and that lower courts cannot overrule a Supreme Court decision.

The Governor also doesn’t seem to realize that Roe v. Wade is no longer the controlling law when it comes to abortion. In 1992, the Supreme Court decided the case of Planned Parenthood v. Casey, which permitted much more regulation of abortion than Roe did. By expressing his preference for the Roe legal standard, the Governor shows that he is out of step with public opinion, which supports many limitations on abortions, especially late-term abortions, and that he wants New York to have the most extreme abortion law possible.

Our Governor is not the only one who is going to such extremes. Many pundits and leaders of the Democratic Party are just as far out there. This is becoming clearer and clearer, and by the end of Judge Kavanaugh’s Senate auto da fe, it will be undeniable.

Perhaps the clearest example of how the pro-abortion movement has come to idolize abortion took place on late-night television recently. An unfunny comedienne staged a bizarre and crude “Salute to Abortion” that celebrated the unlimited right to destroy unborn children. “Progressive” pundits applauded, and politicians who publicly recoil from every incontinent tweet from the President were nowhere to be found or heard from.

There’s a reason for that. The ideology of abortion has reached the point in certain precincts in America where its adherents have turned it into a virtual idol. This is why we must continue to oppose the Governor’s radical abortion bill, and any effort to extend legal protection to the killing of unborn human beings.

Realism about the Supreme Court and Abortion

Saturday, July 7th, 2018

The President is about to announce his nominee to fill the newly vacant seat on the Supreme Court. That will set off a bruising confirmation battle that will stretch into September at least. The rhetoric will be heated and likely ugly, and may even include a large dose of religious intolerance. As this maelstrom kicks off, it’s important that we have realistic expectations about what this will mean for legalized abortion.

It is a clear sign of the debasement of our American political society that so much energy and effort are going to be devoted to a Supreme Court nomination. The loss of a proper understanding of natural law and the dominance of a sense of moral agnosticism have left our government and courts without a moral and legal compass to guide them in interpreting and making civil law. The centralization of power in Washington, which was never envisioned by the Founders of our nation, has given the federal government and especially the courts a disproportionate control over public policy, when compared to the states. One consequence of this has been the constitutionalization of what should be political questions, as we have seen in the issues of abortion and marriage. Another consequence has been the increasing intrusion of politics into areas that are rightly protected personal liberties, such as the freedoms of speech, religion and association.

The worst consequence has been that the Supreme Court — and particularly the “swing vote” that was exercised by the retiring Justice Kennedy — has become our de facto ruler when it comes to essential questions of the separation of powers between the branches of government and crucial social issues relating to life, family and religion. It is truly bizarre that the last few weeks in June is a time of great anticipation, as the Supreme Court’s term comes to an end and we citizens passively wait for rulings that will define our lives. This is why I often derisively refer to the Court as our “Black-Robed Platonic Guardian Rulers” — a role that Washington, Hamilton and Madison would be horrified to see.

These trends are so deeply rooted that we have to have realistic expectations. None of the nominees to the Court will change this sorry situation. None will restore the correct separation of powers or the federalism that were built into our constitutional structure as a defense against the abuse of power. None will stop the trend of constitutionalizing political questions.

We particularly have to be realistic when it comes to the momentous issue of abortion. There is no question that Roe v. Wade decision was wrongly decided as a matter of morality and legal reasoning, and that it has had a corrupting effect on the law, the legal profession and the judicial confirmation process. It is imperative to see it and its progeny overruled (particularly Planned Parenthood v. Casey, which really is the controlling law now, not Roe), and for the constitutional rights of unborn children to be recognized and protected. But that isn’t going to happen any time soon, no matter who the President selects.

Regardless of who the nominee is, it is far from clear that that there would be enough votes on the Court to overrule Roe and Casey. Of the current judges on the Court, four are certainly never going to vote to overrule or even meaningfully limit abortion; only one, Justice Thomas, has ever said that he would vote to overrule; Chief Justice Roberts and Justice Gorsuch both called Roe “settled law” during their own confirmation hearings, and Justice Alito has said that it has added strength as a precedent because it has survived prior challenges and people have come to rely on it. So it’s not as if Roe and Casey are hanging by a thread and just need one more vote to be overruled.

It’s also important to understand that the “conservatism” of some of the Justices would suggest that they may actually shy away from overruling Roe and Casey, even if they believe that it was wrongly decided. Chief Justice Roberts and Justice Alito, and it would already appear Justice Gorsuch, have a strong tendency to minimalism in their rulings — deciding questions on the most narrow grounds available, and choosing, as Justice Alito once wrote, to “leave broader issues for another day.” You can see that trend in some of the major decisions of the last term, for example the Masterpiece Cakesdecision, where the “conservative” justices supported a narrow ruling and completely ducked the critical free speech issue.

This minimalism is particularly important when one realizes how deeply embedded Roe and Caseyare in Supreme Court jurisprudence. Roe didn’t spontaneously emerge fully formed from the brow of Justice Blackmun, nor did the infamous “mystery of life” passage in Casey come out of nowhere. They were the result of decades of prior decisions, reaching back to the 1920’s, in which the Court recognized or invented “privacy” and other rights that are nowhere enumerated in the Constitution, many of which have no basis in history, tradition or natural law. Some of these decisions were actually correct, but many were perverse (like the contraception decisions Griswold and Eisenstadt), and all of them laid the groundwork for Roe and Casey. They also stemmed from a theory of absolute personal autonomy that evolved from the political liberalism on which America was founded and that produced the culture of sexual libertinism and moral relativism that we currently inhabit.

Overruling Roe and Casey would thus mean that the “conservative” Justices would be repudiating an entire body of law and a political and moral philosophy that is so deeply entrenched in our society that most people find any alternative view virtually incomprehensible. They would also set off a political explosion that would undermine the legitimacy of the Court in the eyes of a large number of Americans and many powerful elected officials. Such a momentous decision would be virtually unprecedented in American history, with the only prior examples that I can think of being Brown v. Board of Education and Roe itself.

Even if the Justices mustered the fortitude to overrule Roe and Casey, abortion would not suddenly be made illegal across the United States. The issue would then return to the states for regulation. A number of states already have laws on the books that would essentially permit abortion on demand for some, if not all of pregnancy. New York’s statute, for example, permits abortion on demand prior to 24 weeks of pregnancy. According to one expert on abortion law, if Roe and Casey were overruled, only eleven states have laws that would completely outlaw abortion, and over 80% of Americans would live in states where the situation would be essentially unchanged — abortion would still be legal for all nine months of pregnancy for virtually any reason and with little effective regulation.

It is also likely that state courts would step into the breach and declare a constitutional right to abortion. Iowa’s Supreme Court did so just last week, and as many as twelve other states had previously done so. We would also expect increased pressure in solid liberal states like New York to expand abortion rights through legislation.

This is not to say that we should expect that nothing will change for the better. I fully expect that the new Justice will be a legitimate constitutional originalist, which means that they would interpret the Constitution according to its actual original meaning. I also expect that they will show greater respect for the separation of powers and federalism. And I believe that at least in the short term they will vote to permit states to have greater leeway in regulating abortion, and to protect religious liberty and freedom of expression. Those would all be good developments, and may begin the process of rolling back Roe, Casey, and the terrible decisions that underlie them.

A new nominee to the Supreme Court will not be a magic bullet that will make all things new. Our challenge is to continue to press for social and legislative change that would increase respect for human life. We also have to work harder to create a social infrastructure that would replace the culture of contraception and abortion and promote a vision of women’s health that truly respects her fertility and genuine freedom. We still have a lot of work to do.

Let’s March for Science

Tuesday, April 25th, 2017

Last Saturday, there was a large gathering in Washington called the “March for Science”. I didn’t attend, but I gather that the idea behind the march was a call for society in general and government in particular to rely more heavily on the input of scientists when making public policy in the areas of their expertise. It seemed also to have a lot of messages about accepting the reality of global warming and the adoption of policies that would address it.

All of that is well and good, and I’m all in favor of it.

But while we’re marching for science, how about if we include a little bit of the science of embryology when we make public policies?

Embryology is the study of life at its earliest stages. Human embryology is quite an advanced science, and there is an abundance of amazing resources that have been produced by scientists that can educate us about its truths. A quick Google search will uncover amazing photographs and models of embryonic human life. If we want the quick version, the Wikipedia article is a good place to start.

Here are some of the basic truths that have been revealed to us by the science of embryology: “A human begins life as a fertilized ovum” ( University of Utah medical school website); “The first week of human development begins with fertilization of the egg by sperm forming the first cell, the zygote” ( University of New South Wales, Australia, website); “Human development is a continuous process beginning with fertilization and continuing throughout pregnancy, birth, childhood, adolescence, adulthood, and into old age.” ( the Endowment for Human Development website); “Fertilization is the event most commonly used to mark the zero point in descriptions of prenatal development of the embryo or fetus” (okay, this one is Wikipedia, there were too many medical websites to keep citing them all).

So how does all this science relate to the making of public policy? Consider these quotations:

“During the first trimester, the predominant abortion method is “vacuum aspiration,” which involves insertion of a vacuum tube (cannula) into the uterus to evacuate the contents.”

“D&E is similar to vacuum aspiration except that the cervix must be dilated more widely because surgical instruments are used to remove larger pieces of tissue… Because fetal tissue is friable and easily broken, the fetus may not be removed intact. The walls of the uterus are scraped with a curette to ensure that no tissue remains.”

“Because the fetus is larger at this stage of gestation (particularly the head) [after 15 weeks], and because bones are more rigid, dismemberment or other destructive procedures are more likely to be required than at earlier gestational ages to remove fetal and placental tissue.”

“There are variations in D&E operative strategy… However, the common points are that D&E involves (1) dilation of the cervix; (2) removal of at least some fetal tissue using nonvacuum instruments; and (3) (after the 15th week) the potential need for instrumental disarticulation or dismemberment of the fetus or the collapse of fetal parts to facilitate evacuation from the uterus.”

“The American College of Obstetricians and Gynecologists describes the D&X procedure in a manner corresponding to a breech-conversion intact D&E, including the following steps: 1. deliberate dilatation of the cervix, usually over a sequence of days; 2. instrumental conversion of the fetus to a footling breech; 3. breech extraction of the body excepting the head; and 4. partial evacuation of the intracranial contents of a living fetus to effect vaginal delivery of a dead but otherwise intact fetus.”

All of those blood-chilling quotations are from the majority opinion of the Supreme Court of the United States in the case of Stenberg v. Carhart, which struck down a state ban on partial birth abortions. That opinion was authored by Justice Steven Breyer and joined by four other Justices. All of those Justices were highly intelligent and educated people, all of whom attended Ivy League or similar prestigious colleges and law schools. Presumably, they were all reasonably well educated (for laypeople) in basic scientific principles. One would expect that at some point their education included the basic facts of human embryology. That opinion was written in 2000, so Wikipedia was certainly easily available for quick reference.

Yet they still upheld the legal right to kill members of the human race in the most barbaric means imaginable — dismemberment while still alive. They obviously knew the science, but ignored it.

So by all means let us march for science. More public policy decisions should be made based on the facts uncovered by scientific research. But we cannot fool ourselves. Science alone is not enough to make good laws and to promote social justice in our society. We need a proper sense of morality, which cannot be discovered by the scientific method. For that, we need to listen to the voice of God, either in the natural moral law written in our hearts or in his revealed Word.

When we ignore the truths of the moral law, we make even worse mistakes than when we ignore the laws of science. Let’s march about that.

Failing the Dred Scott Question

Friday, March 24th, 2017

As I have already written, I have great concerns about some of the answers given by Judge Neil Gorsuch during his confirmation hearings. I consider his originalist legal philosophy to be perfectly sound and likely to produce decisions that are favorable to the cause of human life. But when asked the most important question, his answer was an utter failure.

One of the Democratic Senators, Richard Durbin, was questioning Judge Gorsuch about a book he had written about assisted suicide and euthanasia. In the book, Judge Gorscuh proposed a principle that could be used to justify laws against suicide and euthanasia, which he called the “inviolability-of-life principle”:  “All human beings are intrinsically valuable, and the intentional taking of human life by private persons is always wrong.”

Senator Durbin then asked the judge how he could square that principle with legalized abortion. This exchange then took place:

Gorsuch: Senator, as the book explains, the Supreme Court of the United States has held in Roe v. Wade that a fetus is not a person for purposes of the Fourteenth Amendment—and that book explains that..

Durbin: Do you accept that?

Gorsuch: That’s the law of the land. I accept the law of the land, Senator, yes.

I appreciate Judge Gorsuch’s respect for precedent and the original meaning of the Constitution. But I wonder if he realizes that in his answer, he was echoing one of the worst possible Supreme Court precedents — the infamous case of Dred Scott v. Sandford. In that decision, the Court held that, based on their reading of the original meaning of the Constitution, African-Americans were not “persons” within the meaning of the Constitution:

They had for more than a century before been regarded as beings of an inferior order, and altogether unfit to associate with the white race either in social or political relations, and so far inferior that they had no rights which the white man was bound to respect…. [and the provisions of the Constitution] show clearly that they were not regarded as a portion of the people or citizens of the Government then formed.

In a concurring opinion, one of the Justices said this:

The correct conclusions upon the question here considered would seem to be these: That, in the establishment of the several communities now the States of this Union, and in the formation of the Federal Government, the African was not deemed politically a person.

Is that really the kind of precedent that we want Supreme Court justices to respect?

What’s especially disheartening about Judge Gorsuch’s answer is that he didn’t have to say that at all. He could have easily deflected the question — as he did with pretty much every other substantive question — by saying that the issue of the personhood of unborn humans was likely to be litigated before the Court and that it was thus inappropriate for him to comment. The fact that he did give a substantive answer means that he considered the non-person status of unborn humans to be so clearly and finally settled that it is uncontroversial.

I still think that Judge Gorsuch should be confirmed, and that he will likely rule positively on incremental pro-life regulations of abortion. But any hope that he would overrule Roe v. Wadeappears to be a mirage.

The most important threshold legal question in any case is whether someone can count on the protection of the law to defend their basic human rights. Judge Gorsuch failed that question.

“Precedents” and Justice

Wednesday, March 22nd, 2017

We are now in the midst of yet another set of hearings on the nomination of a new justice of the Supreme Court. As with prior hearings, it has been considerably less than edifying, given the political grand-standing and speechifying. But once again, some of the more illuminating exchanges have centered on the concept of “precedent”.

“Precedent” is a legal term for a previous judicial decision. In many cases, courts will consider precedent to be the controlling legal authority. For example, lower courts must follow the precedents of higher courts in all similar cases. This is an important feature of a common law-based legal system, like ours. It means that once a legal issue has been resolved, there is a strong preference for respecting and giving deference to that decision, so that there can be some clarity and predictability about what the law is. The fancy Latin term for this respect for precedent is “stare decisis”, which means, basically, “maintain what has been decided”.

Of course, not all previous judicial decisions are worthy of being followed. It has always been understood that prior decisions are not controlling if they are “flatly absurd or unjust” or “contrary to reason” (to quote the great legal scholar William Blackstone). Courts frequently overrule prior decisions when it becomes clear that they were wrong or poorly reasoned. In fact, in the words of another great legal scholar, Chancellor James Kent, “If, however, any solemnly adjudged case can be shown to be in error, it is no doubt the right and the duty of the judges who have a similar case before them, to correct the error” (emphasis added).

The Supreme Court has overruled prior cases, or declined to follow them, many times. The most famous example is Brown v. Board of Education, which overruled the earlier erroneous decision by the Court that endorsed legal racial segregation. There have also been other cases that are universally seen as unworthy of being followed, even if the Court has never formally overruled them. For example, we have the infamous Dred Scott v. Sandford, which held that African-Americans “had no rights which the white man was bound to respect”, or the case of Buck v. Bell, which upheld the involuntary sterilization of mentally handicapped persons since, as the Court said, “Three generations of imbeciles are enough”. Clearly, those “precedents” are not worthy of any respect.

This brings us to the current confirmation hearings. The Democratic Senators on the Judiciary Committee are repeatedly asking the nominee about his views on the cases of Roe v. Wade, Planned Parenthood v. Casey, and their ilk. They have invented a term, “super-precedent”, to indicate that they believe these decisions are beyond any further judicial review and can never be overturned — a concept so foreign to our Constitutional order and to the rule of law as to be laughable.

However, in response to one of those questions, the nominee said: “”Once a case is settled, that adds to the determinacy of the law. What was once a hotly contested issue is no longer a hotly contested issue. We move forward.”

That is a very unfortunate way of thinking. Roe, Casey, and their progeny have excluded unborn children from virtually any legal protection, declared them not to be “persons” under the law, and permit their destruction with impunity. They have established the unborn as a virtual underclass, whose rights no man is bound to respect. They violate the fundamental principles of natural law and justice, and the promise of universal equality under the law and the right to life as expressed by the Declaration of Independence. They are widely recognized as being poorly reasoned, even to the point where legal scholars who favor abortion rights have derided them.

It is therefore very troubling that the new Supreme Court nominee has called these decisions “precedent” and “settled”, and that we have to “move forward”. When a law — either a statute or a judicial decision — violates the inherent, inalienable rights of any human being, that law can never be considered to be “settled”. It can never be respected or given deference as a binding “precedent”. Such a law is not really a law at all, but is instead a usurpation of power and an act of violence. A true respect for authentic justice means that it must be opposed and changed.

Justice must take precedence over “precedents”. Otherwise we do not have an authentic rule of law for all, and we will never fulfill the dream of respecting the inalienable rights given to us by our Creator, particularly the right to life. I hope that the nominee will consider this more carefully when he is on the Supreme Court, and take seriously his right and duty to correct the injustice of the Court’s abortion decisions.

Judges — Not Tribunes of the People

Monday, February 6th, 2017

The President has nominated Judge Neil Gorsuch to fill the current vacancy on the Supreme Court. This has excited and inflamed many people, and the battle over his confirmation will be a wild one. Filibusters and nuclear options are all on the table, and it will be very interesting to see what happens.

One thing that has already become clear, though, is that a great many Americans have no idea what a judge is really supposed to do. It may sound too trite to even be mentioned, but the fundamental truth is that a judge’s job is to decide cases. Nothing more.

A great deal of the commentary that you will see from the opponents of Judge Gorsuch is startlingly uninformed. After the announcement, people were already labeling him as “dangerous” and “extreme”, even though they hadn’t heard of him five minutes before. They were portraying him as some kind of wild-eyed maniac who somehow had managed to get on the Circuit Court of Appeals. Never mind that he was confirmed unanimously by the Senate for that position and that he has served there for the last decade without the Republic collapsing or anyone moving to impeach him.

The reality is that these advocates couldn’t care less about who Judge Gorsuch is (a pillar of his church and community), what his background is (both Columbia College and Harvard Law School, a few years behind me), or his years of outstanding public service (clerking on the Supreme Court and in a high position in the Justice Department). The reality is that these advocates only care about having a Supreme Court Justice who will enact their favored policy positions from the bench. And based on their rhetoric, the only issue that really seems to matter to them is abortion — they desperately want to keep abortion on demand legal in this country, and they don’t care how many people they have to calumniate and destroy to do it.

This campaign against Judge Gorsuch also betrays a complete lack of understanding about what a judge is supposed to do, and it illustrates how important it is for a judge to have a coherent philosophy of the law and a firm grasp of the essential principles of the American constitutional order.

Judges are not supposed to be super-legislators who make sure that their favored policies are embodied in their interpretation of the Constitution and statutes. Policy-making is the province of Congress and the President — the political branches that are subject to oversight by the electorate. The only job of the Supreme Court, as anyone can see in Article III of the Constitution, is to decide cases and controversies that arise under the Constitution and laws as well as certain other specific cases (like disputes between states).

Our Supreme Court has been violating that limited role for a very long time now. At least since the Progressive Era and especially since the New Deal, the Court has seen itself almost as a body of Platonic Guardians who can discern new meanings in the Constitution that nobody saw before. This is the body of judges who had the gall to say in the case of Casey v. Planned Parenthood:

Where, in the performance of its judicial duties, the Court decides a case in such a way as to resolve the sort of intensely divisive controversy reflected in Roe and those rare, comparable cases, its decision has a dimension that the resolution of the normal case does not carry. It is the dimension present whenever the Court’s interpretation of the Constitution calls the contending sides of a national controversy to end their national division by accepting a common mandate rooted in the Constitution.

What gaseous nonsense. I defy anyone to find even a hint of such a role for the Court in the Constitution or in any of the writings of the Founders of our Republic. Madison, Hamilton and Washington would be appalled by such a pronouncement.

This highlights the importance of a sound judicial philosophy and a coherent understanding of the structure and principles of our Constitution. Too many Justices are on the bench already who lack this, and instead are ideologues (like Justices Ginsberg and Sotomayor), smart but lock-step liberals (Justice Kagan and Breyer) or vacuous pragmatists (Justice Kennedy). They appeal to a non-existent entity they call the “living constitution” and use that to make up new laws as they go along. If you want to see how it’s done, see Obergefell v. Hodges. And in doing so they hijack the proper roles that the Constitution gives to Congress and the President.

Judge Gorsuch, on the other hand, is an “originalist” and a “textualist”, which means that his philosophy is to discern the actual meaning that Constitutional provisions had when they were adopted and the actual meaning of the words that appear in laws enacted by Congress. Then, in the common law tradition, he would see his job as applying those principles to decide the actual case or controversy that is before him. No vaporous pronouncements about grand roles of the Court, and no discoveries of new rights and liberties hiding in invisible ink in the penubras, emanations and miasmas of the Constitution.

This restrained approach to the law is what actually scares the advocates who oppose the judge. They have become so used to judges enacting their favorite policies that they can’t imagine one who does otherwise. They are desperate to hold onto their policy gains, and they dread putting them before the elected branches for an open democratic debate.

In ancient Rome, there was an office called the “Tribune of the People”. He had the power to veto any law or government action, and he was absolutely unaccountable to anyone — nobody could overrule him or even lay hands on him. That is not what our Constitution envisions when it gives the Supreme Court its “judicial power”. Judges should decide cases and controversies, give effect to the laws that were actually enacted by “we the people”, and not set themselves up as unaccountable rulers.

Pro-Life Judges

Monday, January 2nd, 2017

I was recently asked my opinion of the list of the President-Elect’s potential Supreme Court nominees. I don’t have any personal knowledge of any of the people on the list, so I can’t really say anything useful about them. But I do have some observations about whether these people, or any judges, can be said to be “pro-life”.

In most cases, it is extraordinarily difficult to divine the personal views, and even at times the judicial philosophy, of lower-court judges based on isolated judicial opinions. Conscientious lower court judges are bound by precedent and are not free to overrule or widely diverge from it, even if they disagree with it. It is not good practice for lower court judges to openly criticize precedent. So even if a lower court judge rules against the “pro-life” side in a case, it doesn’t necessarily mean anything about their personal views or their judicial philosophy. It could just mean that the judge is doing his job.

Plus, sitting judges generally avoid writing law review articles or giving substantive talks on issues, since that might be considered pre-judging cases. There is also a phenomenon in the legal world where a person who hopes to be appointed to the bench deliberately declines to speak openly about controversial topics, to preserve their confirmability. So most sitting judges are a bit Sphinx-like when it comes to their actual views.

It is also a fact that there is probably not more than a handful of sitting federal or state high court judges who are “pro-life” in the sense that I would use the term — namely, they believe that unborn human beings are “persons” within the meaning of the 14th Amendment and are entitled to full legal protection. No Justice of the Supreme Court has ever taken that position — not even Justices Scalia or Thomas — and I would doubt that any sitting state judge has done so either.

So I would be very reluctant to call any judge “pro-life”, lest the word lose its real meaning.

In the absence of such persons, our best bet at this point is a “constitutionalist” or “originalist”, who would hold with Justice Thomas (and the late Justice Scalia) that there is no right to abortion guaranteed in the Constitution, and that the issue is therefore reserved to the states to permit and regulate or prohibit. I am not satisfied with that view, but I think it is just about as good as we can get in the current legal climate.

My general impression, from what I have read, is that the people on the President-Elect’s list would likely fit that description. Since I have no confidence whatsoever that the President-elect would recognize constitutionalism if it hit him over the head, I take some comfort in the probability that he is getting advice from the Federalist Society, which is committed to that view of the law.

Of course, one never knows what a person will do once they’re on the Court (as we have seen from Warren, Brennan, Souter, Kennedy, O’Connor, Roberts and many, many more examples). The Court is generally reluctant to overturn major precedents, and instead prefers to adjust or adapt them (see Casey). So I am not particularly sanguine about any reversal of Roe/Casey in the near term. I think that if a couple of constitutionalist Justices are appointed, we might get a ruling that backs away from the expansive application of Casey’s “undue burden” standard that we saw used to devastating effect in Whole Women’s Health to strike down Texas’ health and safety regulations for abortion clinics. That would be a tremendous accomplishment in itself because it would open up the field for further state restrictions, and it could lay the groundwork for an eventual direct attack on Roe/Casey.

One thing that I particularly fear is a sense of pro-life over-confidence that might lead to a premature assault on Roe/Casey. Pushing flawed and risky cases too fast (e.g., heartbeat bills) could produce a disastrous reaffirmation of Roe/Casey, perhaps with an even stronger constitutional justification based on the (spurious) idea that the Equal Protection Clause requires abortion rights to ensure the ability of women to fully participate in society. That is a position long proposed by Justice Ginsberg, and given the tenor of recent Court decisions like Obergefell, it may appeal to a majority of other justices as well.

At this point, I’m more concerned with the Executive Branch appointments, since that’s where most of the action is right now — regulations, enforcement actions, etc. I also fear that too much attention will be paid to DC, and not enough to the states where the pro-death movement will be very active in expanding abortion rights and promoting assisted suicide. State legislatures and courthouses are the battlefront right now, and our movement needs to focus on them, and less on crystal-ball gazing about potential judicial appointments.