Posts Tagged ‘Supreme Court’

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.

What’s at Stake in the Cake Case

Monday, December 4th, 2017

A very important religious liberty and free speech case will be argued before the United States Supreme Court tomorrow. It involves a wedding cake artist, Jack Phillips, who does business in Colorado under the name Masterpiece Cakes. This decision will go a long way to determining how much freedom we will have to dissent from the current cultural orthodoxy — and not just on issues of “gay rights”.

A few years ago, before same-sex “marriage” was legalized in Colorado, Mr. Phillips was approached by two men who were planning a “wedding” in another state, and wanted to have a reception in Colorado. They asked him to bake and decorate a custom wedding cake for them. Mr. Phillips declined, citing his Christian faith and his beliefs about the true nature of marriage, and said that he could not use his artistic talent to promote an event that was contrary to his faith. The State of Colorado, acting through its Civil Rights Commission, took a dim view of Mr. Phillips’ religious objection and ruled that the state’s “public accommodation” law prohibited him from discriminating against a customer on the basis of sexual orientation.

The case has now been appealed through the courts and has now reached the Supreme Court. Mr. Phillips has two main arguments. First, he is arguing that being forced to decorate the wedding cake violates his First Amendment rights to free exercise of religion by requiring him to participate in an event that is contrary to his faith (the “wedding” reception). His second argument is based on the premise that his artistic cake decorations are a form of speech, so he should not be coerced into saying something that he does not wish to say (that this relationship is in fact a “marriage”).  Colorado is countering by denying that cake decorating is a form of speech or expressive conduct, and by contending that the state’s interest in eliminating discrimination outweighs Mr. Phillips’ right to free exercise of religion.

Our mainstream culture has adopted the notion that gay rights should trump all other legal interests. It holds that “error has no rights” when it comes to the newly-minted notion of same-sex “marriage”, and any dissident is a bigot with no rights bound to be respected by enlightened folk. The advocates for these views have been very busy whipping up fear and loathing and  predicting all sorts of deplorable consequences if Mr. Phillips wins. They have also been misrepresenting what the law actually is, and substituting their “wishful thinking” theory of what they want the law to be.

The Supreme Court’s prior rulings on the Free Exercise and Free Speech Clauses of the First Amendment make it clear that the government cannot easily impose laws upon people when they pose a serious conflict with the person’s religious beliefs or when they suppress their speech.  In other words, when a person claims a religious exemption or a free speech protection they are not breaking the law — they are merely asserting their basic human and constitutional rights.  If the government or a private party fails to recognize those rights, they are the ones who are breaking the law, not the religious believer.

Examples abound in both speech and religion cases, such as the Supreme Court ruling that upheld the right of Jehovah Witnesses to refuse to recite the Pledge of Allegiance. In that case, the Court made a famous statement of principle: “If there is any fixed star in our constitutional constellation, it is that no official, high or petty, can prescribe what shall be orthodox in politics, nationalism, religion, or other matters of opinion or force citizens to confess by word or act their faith therein.” In another case involving the right to say things that people found offensive, the Court said, “the mere presumed presence of unwitting listeners or viewers does not serve automatically to justify curtailing all speech capable of giving offense”.

Cases happen all the time that involve conflicts between free speech and religious freedom rights against other legal interests of the government or private parties. Every state and the federal government has a law that requires employers to give reasonable accommodations to employees if their work conditions violate their religious beliefs. The recent Supreme Court decisions in the challenges to the HHS Mandate (principally the Hobby Lobby case in 2014) affirmed the idea that burdens on a person’s religious belief can warrant an exemption from the law. In recent years the Supreme Court has also upheld a church’s ability to hire and fire its ministers, the right of a prisoner to grow a beard required by his faith, and the right of a prospective employee to wear a head covering mandated by her faith. In the lower courts, there have been hundreds of lawsuits where employers are required to recognize religious holidays or clothing, cities are banned from restricting street-corner evangelists, schools are prevented from closing religious clubs or newspapers, etc. There have been numerous free speech cases that carefully protected people’s right to express themselves without government censorship.

The current law has certain characteristics that we need to understand if we are to appreciate the Cake Case and to separate the wheat from the chaff in the opinions of pundits and commentators:

  • The law requires judges to actually judge, and make fact-based case-by-case evaluations.There’s no blanket rule favoring anyone. So the claim by advocates that a ruling for Mr. Phillips will create a universal “get out of the law free card” for religious believers shows a complete lack of faith in our court system to do its job. It’s also not supported by any evidence that religious liberty or free speech claims win every case — in fact, the studies show quite the contrary.
  • It rejects the “tough luck” approach under which the religious person automatically always loses. Enemies of religion may wish it were otherwise, but the law has long recognized that there actually is some legitimacy to religious beliefs and that they occasionally have to be protected. In fact, studies show that in recent years that religious liberty plaintiffs win about half of the cases that are brought claiming a violation of the Religious Freedom Restoration Act and three-quarters of free speech cases. Legislatures also routinely grant religious exemptions. The sky has not yet fallen.
  • It protects against slippery slopes. Back to our original principle — our current law relies on judges being judges and making sensible distinctions between cases and to apply the rules sensibly. There has been no outpouring of religious liberty cases or massive instances of nullification of generally applicable laws. The study noted above found that there has been no significant change in the way the law is applied since the Hobby Lobby case in 2014, which upheld the religious freedom of a family business to refuse to comply with the HHS Mandate.
  • It does not require you give up your religious freedom by engaging in business. This has been settled law for decades. The Supreme Court in Hobby Lobby implicitly recognized it just a couple of years ago. In an earlier case, the court said: “It is well settled that a speaker’s rights are not lost merely because compensation is received; a speaker is no less a speaker because he or she is paid to speak.” Being in business doesn’t mean that Mr. Phillips suddenly became a second-class citizen.
  • It recognizes and protects against objections based on insincere religious beliefs. Such claims will inevitably happen. But again, the law trusts that judges will actually judge and discern which claims are legitimate and which are frivolous. Judges have been doing this for many years, and there’s no reason to believe that they will suddenly lose that ability if Mr. Phillips prevails.
  • It will not silence people’s speech just because somebody else is offended or it hurts their dignity. This is also well-established law. Our right to free speech does not stop when others’ sensibilities come into play. The Supreme Court has consistently upheld the right to “offensive speech”, including the right of Nazis to march in a Jewish neighborhood, the KKK to burn a cross, and a fringe anti-gay group to protest at soldiers’ funerals. The risk of hurt feelings is a price of freedom. Plus, why does the dignity of the gay couple have more legal weight than Mr. Phillips’ dignity and integrity?

Our nation was built on the notion of the inherent rights of individuals to live free from undue government control. That freedom applies to all sorts of people, including and especially those whose opinions are not favored by the majority and powerful. Mr. Phillips is defending his ability to make his cakes and decorate them as he pleases. Even those who disagree with him should defend that right.

More Chaos and Injustice for Refugees

Friday, July 7th, 2017

At the end of June, the Supreme Court issued a ruling in a lawsuit that challenged the Administration’s so-called “travel ban”. The Supreme Court decision would permit the Administration to impose its ban on refugees from any nation in the world for 120 days, once the quota of 50,000 refugees has been met. Since that absurdly low number is expected to be met next week, the effect is to permit a refugee ban for the rest of this year.

However, the Court provided that refugees from six Muslim-majority countries can be admitted if they can prove a “bona fide relationship with a person or entity in the United States.” The Administration has interpreted this narrowly, to mean that people with “close family” in the U.S. — such as a parent, spouse, fiance or fiancee, child or sibling — would qualify. But it does not include others, including grandparents, grandchildren, aunts, uncles and cousins. And it fails to take into account the reality of persecution suffered by thousands who don’t have any family ties to the US.

This leaves thousands of refugees trapped in dangerous and unhealthy camps or in hiding from violence and persecution. 65 million people are currently displaced by war and persecution around the world, according to the UN. Our attention has mostly been directed to the Middle East, but there are refugees from all over the world, including those fleeing the civil war and famine in South Sudan and people escaping the growing tyranny and economic collapse in Venezuela.

The terrible irony is that, even though the President originally said he wanted to help Christians facing persecution and to keep out radical Islamists, the ban will likely exclude far more Christians than Muslims. According to the State Department, 48 percent of the refugees admitted to the US in the first half of this year were Christian, while 41 percent were Muslim.

The injustice to Christians fleeing persecution was made even more evident by the bizarre decision by immigration officials to target Chaldean Christians in Michigan for a deportation campaign. Some of these people were legitimately subject to potential deportation because of prior criminal convictions. But the result of this campaign is not only to separate families, but to send these people back to northern Iraq — a current hot war zone that has been the site of genocide against Christians. It’s hard to fault them for feeling betrayed by a President who once tweeted “Christians in the Middle-East have been executed in large numbers. We cannot allow this horror to continue!”

This Administration is not exactly famous for consistency and rationality of its policies, and chaos seems to be the order of the day. Just today, it was revealed that the head of the ICS deportation unit has ordered his officers to detain all undocumented immigrants they encounter, even if they don’t have a criminal history — in direct contradiction of the Administration’s publicly stated priorities. Considering that the Administration hasn’t even nominated a new head of ICS or the policy office of Homeland Security, the disarray is not too surprising.

But the injustice of this Administration’s policies on refugees is both surprising and tragic. While I can appreciate differing positions on the appropriate numbers of immigrants to welcome to the United States, it is hard to fathom the Administration’s hard-heartedness towards refugees.

“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.

Supreme Court to Religious Liberty — Drop Dead

Thursday, July 7th, 2016

In the last few decades, legal scholars and those interested in religious liberty have questioned whether the Free Exercise Clause of the Constitution is on its way to extinction. The question stems from the Supreme Court’s 1990 decision in the case of Employment Division v. Smith, in which it held that a neutral law of general applicability does not violate the Free Exercise Clause, even if it imposes a burden on a person’s religious beliefs or practices.

At this point, the Supreme Court has give a pretty clear answer to this question. For all intents and purposes, the Free Exercise Clause is a dead letter, with as much life to it as the Third Amendment’s ban on the quartering of troops in private houses.

Although the Smith rule appears to leave open the possibility of challenging laws, in reality it has rendered the Free Exercise Clause virtually useless in defending religious liberty. In fact, in the recent cases that have reached the Supreme Court on religious freedom during Chief Justice Roberts’ tenure (since 2005), virtually all have completely ignored the  Free Exercise Clause. Instead, the very few religion cases that have been taken by the Court were decided on other grounds, such as the Free Speech Clause, the Religious Freedom Restoration Act, the Religious Land Use and Institutionalized Persons Act, or Title VII. The lone possible exception was an ambiguous decision regarding the ability of churches to have discretion over religious employment decisions; it isn’t clear whether it rested on the Establishment Clause or the Free Exercise Clause. In any event, it’s as if the Court doesn’t want to hear about the Free Exercise Clause.

If that weren’t clear already, the Court made it perfectly plain this term. A very significant religious freedom case was presented to the Court, involving a serious infringement upon religious freedom. But the Court didn’t think the case was even worth considering.

The case involved a small family-owned pharmacy in the State of Washington. The owners of the pharmacy, the Stormans family, are Christians, and they have religious objections to dispensing so-called “emergency contraception”, because it can cause an early abortion. Other nearby pharmacies are willing to dispense those drugs, so they are easily available to anyone who wants them.

That wasn’t good enough for the pro-abortion zealots in the Washington government. They adopted regulations that their Human Rights Commission interpreted to specifically rule out moral and religious objections to the dispensing of drugs, even though they permitted (either explicitly or by practice) a host of non-religious reasons that a pharmacy can decline to dispense a particular drug. This was the result of a concerted campaign by abortion advocates to rule out any conscience-based objections to “emergency contraception”. In fact, the Governor of Washington invited Planned Parenthood to collaborate in the drafting of the regulations. The Governor even threatened the members of the Human Rights Commission being fired, and with violations of anti-discrimination laws if they allowed conscience objections. Once the rules were adopted, Planned Parenthood targeted this pharmacy for complaints.

It would be hard to imagine a clearer case of the government using its power to punish people of faith for exercising their religious beliefs in the way they conduct their business. There is no doubt that the government of Washington was trying to enforce a pro-abortion orthodoxy, and was willing to put people out of business if they dared to dissent.

The Stormans family challenged these regulations, and were initially victorious. But the Ninth Circuit Court of Appeals — a notoriously liberal bench — overturned the lower-court decision. The Stormans then appealed to the Supreme Court. They were represented by Alliance Defending Freedom, the great defenders of religous liberty and human life. Thirty-three state pharmacy associations urged the Court to take the case. Many others — including the US Bishops Conference and forty-three members of Congress — filed briefs in support of the Stormans’ petition.

Even under the restrictive Smith rule, this should have been an easy case. There was clearly a substantial burden on religious beliefs — being forced to cooperate directly in a possible abortion. The law was far from neutral — it specifically targeted only those who had moral or religious objections, and nobody else. And it absolutely wasn’t generally applicable — all sorts of secular exceptions were permitted, and only moral or religious ones prohibited.

But on the very last day of the Court’s term, it refused to hear the Stormans’ case. Five Justices — Kennedy, Ginsberg, Breyer, Kagen and Sotomayor — didn’t think that the Stormans deserved their day in Court. (I have to add that Justice Sotomayor joining that group is a particular disgrace — she is a graduate of Cardinal Spellman High School, my alma mater, and she obviously didn’t learn the same things that I was taught about the importance of our Catholic faith.)

The three remaining Justices — Roberts, Alito, and Thomas — dissented from the denial of the appeal, and Justice Alito wrote a blistering opinion. His opening paragraphs are worth quoting at length:

This case is an ominous sign.

At issue are Washington State regulations that are likely to make a pharmacist unemployable if he or she objects on religious grounds to dispensing certain prescription medications. There are strong reasons to doubt whether the regulations were adopted for — or that they actually serve — any legitimate purpose. And there is much evidence that the impetus for the adoption of the regulations was hostility to pharmacists whose religious beliefs regarding abortion and contraception are out of step with prevailing opinion in the State. Yet the Ninth Circuit held that the regulations do not violate the First Amendment, and this Court does not deem the case worthy of our time. If this is a sign of how religious liberty claims will be treated in the years ahead, those who value religious freedom have cause for great concern.

By refusing to hear this case, the Supreme Court said to the Stormans and to the Free Exercise Clause that they can just drop dead. That is bad news for religious liberty, for the equal administration of the law, and for the health of our society. An ominous sign, indeed.

Victory for Religious Freedom

Tuesday, May 17th, 2016

Yesterday, the Supreme Court issued its long-awaited ruling on the HHS Mandate cases that involved the Little Sisters of the Poor, several Catholic dioceses, and a number of other Christian organizations. It is a bit of a disappointment that the Court didn’t rule explicitly on the merits of the religious liberty issues, and the case will linger on for a while in the lower courts. Still, given the divisions in the Court after the death of Justice Scalia, I have to consider this to be a major victory.

The Court unanimously decided to send the cases back to the Circuit Courts, which had previously issued split decisions on the cases. The Supreme Court instructed the lower courts to work out a resolution that would ensure that the religious non-profits would not have to do anything to facilitate the provision of morally offensive services beyond contracting with their insurance company for a policy that excludes them. That will then permit the government to come up with a way to ensure that the services are still offered to the employees of the non-profits. Most important, the Court also ruled that the religious non-profits could not be fined or penalized by the government for taking their stand in defense of their religious liberties.

There are a couple of crucial take-aways from this.

  • All along, the argument by the religious non-profits has been that they don’t want to be involved in providing abortion and contraception services that they find morally offensive.
  • This ruling vindicates that argument, and sends a clear signal to the government that they can’t force religious people to violate their religious beliefs by threatening them with ruinous fines.
  • The ruling also makes clear that it is not the business of the government or courts to tell people when their religious beliefs are burdened by a law. The Court’s decision is a direct rebuke to the lower courts who substituted their judgement about Catholic and Christian belief for the plaintiffs.
  • The government has not been told in no uncertain terms that they have to be more accommodating of religious belief, and more creative in coming up with ways to achieve their goals without burdening religious beliefs.
  • The government’s parsimonious view of religious freedom has now been dealt its fourth consecutive major blow — starting with the Hosanna Tabor case, through Hobby Lobby, and now with Zubik, the Court is sending a clear message that the constitutional recognition of religous freedom has to be given special weight when it is negatively impacted by government policies.

Major kudos have to go out the defenders of religious freedom at the Becket Fund and Alliance Defending Freedom, who gave these cases the benefit of their great legal skills. But more than anything, credit must be given to the Little Sisters of the Poor, Bishop Zubik, Archbishop Wuerl, Priests for Life, and the Christian Colleges who were the plaintiffs in these cases, and who carried the banner for our natural right to practice our faith free of government coercion.

James MadisonGeorge Washington, and Thomas Jefferson would be proud.