Monday’s decision in Whole Woman’s Health v. Texas demonstrates that the U.S. Supreme Court, as currently constituted, is committed to uphold the right to abortion, no matter what.
Even though the Court’s 1973 decision in Roe v. Wade had determined that a state has a “legitimate interest” in seeing that an abortion “is performed under circumstances that insure maximum safety for the patient,” those have proved to be just empty words. In a 1992 decision in Planned Parenthood of Southeastern Pennsylvania v. Casey, the Court crafted an “undue burden” test to determine whether health restrictions have the “purpose or effect of presenting a substantial obstacle to a woman seeking an abortion.” As with all such balancing tests invented by the Court, this test has allowed the justices to reach whatever decision they personally prefer. In this case, the personal preferences of the Justices were, again, revealed to be overwhelming pro-abortion.
The Texas law at question in this case imposed two restrictions on abortion providers — first, that the physician abortionist had admitting privileges at a hospital within 30 miles of the abortion facility, and second, that the abortuary meet at least the “minimum standards ... for ambulatory surgical centers” in Texas. The Court swept aside all of the evidence as to the danger of abortion for the women involved, and focused only on the evidence offered by pro-abortion physicians and medical groups. As a result, abortion was declared to be “much safer, in terms of minor and serious complications, than many common medical procedures not subject to such intense regulation and scrutiny.” However, the rationalizing principle here is that the law which applies to abortion cases is very different from the law the court applies when it addresses less favored rights.
We filed an amicus curiae brief in this case on behalf of Conservative Legal Defense and Education Fund, U.S. Justice Foundation, Institute on the Constitution, and Southwest Prophecy Ministries, which set out the fraudulent nature of abortion jurisprudence, contrasting that with a dozen Scripture verses — laying out the view of our Creator drawn from The Holy Bible. We argued that “The Roe v. Wade decision can only be understood as being grounded jointly on (i) the atextual notion of ‘privacy’ ... and (ii) the judicially invented doctrine of substantive due process.” Even though the majority paid no heed to our arguments, or the arguments of the other pro-life briefs, one of the two dissenting opinions expounded on how lawless Supreme Court abortion decisions have become.
The Thomas Dissent
Indeed, in what may go down as his best dissent ever, Justice Thomas began with Justice Scalia’s famous observation in his 2000 dissent in Stenberg v. Carhart about the fraudulent nature of Supreme Court abortion jurisprudence: “the Court’s troubling tendency to bend the rules when any effort to limit abortion, or even to speak in opposition to abortion, is at issue.” Justice Thomas ripped the majority opinion from one end to the other, explaining why it was corrupt: mangling even the subjective “undue burden” test of Planned Parenthood v. Casey. Accusing the Court of further perpetuating “the Court’s habit of applying different rules to different constitutional rights — especially the putative right to abortion,” Justice Thomas concluded: “[o]ur law is now so riddled with special exceptions for special rights that our decisions deliver neither predictability nor the promise of a judiciary bound by the rule of law.” Concluding with a frontal assault on balancing tests, Justice Thomas warned: “As the Court applies whatever standard it likes to any given case, nothing but empty words separates our constitutional decisions from judicial fiat. ... If our recent cases illustrate anything, it is how easily the Court tinkers with levels of scrutiny to achieve its desired result.”
This brilliant dissent should be required reading for every law school student who is increasingly unexposed to reasoning from fixed principles, and instead trained in the techniques of judicial balancing — as if the latter was all that law is about. Justice Thomas took his constitutional law lesson back to the beginnings of where the Court’s jurisprudence went astray — discussing, inter alia, the famous Footnote 4 of the Court’s 1938 decision in United States v. Carolene Products, as an excuse to issue decisions which favored unenumerated rights, setting the Court at large.
Justice Thomas pulled no punches, observing that:
“The Court has simultaneously transformed judicially created rights like the right to abortion into preferred constitutional rights, while disfavoring many of the rights actually enumerated in the Constitution. But our Constitution renounces the notion that some constitutional rights are more equal than others. A plaintiff either possesses the constitutional right he is asserting, or not—and if not, the judiciary has no business creating ad hoc exceptions so that others can assert rights that seem especially important to vindicate. ...”
In his concluding paragraph, Justice Thomas returned to Justice Scalia, observing that “The majority’s embrace of a jurisprudence of rights-specific exceptions and balancing tests is ‘a regrettable concession of defeat—an acknowledgment that we have passed the point where “law,” properly speaking, has any further application.’” Brilliant. Let us hope that this clear statement of judicial error will constitute a turning point, as the curtain is ripped back on the techniques of Judicial Fiat. Justice Scalia would have been pleased.
The Breyer Majority Opinion
Justice Breyer’s entire legal analysis of the two Texas restrictions, really, is as simple as uttering his conclusion: “Each places a substantial obstacle in the path of women seeking a previability abortion, each constitutes an undue burden on abortion access. ...” Based on that, the Court rules that “each violates the Federal Constitution. Amdt. 14 section 1.” (As they say, the right to an abortion was found hidden between the penumbras and the emanations of the Fourteenth Amendment.)
Making up law as he went, Justice Breyer rejected the Fifth Circuit’s deference to the Texas legislature: “The statement that legislatures, and not courts, must resolve questions of medical uncertainty is also inconsistent with this Court’s case law.” There you have it — the Supreme Court usurps not just the exclusive right to determine what is constitutional — but also matters of medical policy. Justice Ginsburg filed a short concurring opinion relying heavily on the amicus briefs of pro-abortion groups. As with Justice Breyer, Justice Ginsburg scarcely mentioned the Constitution — but viewed herself as making health care policy for the people of Texas.
Of course, if you ask the wrong question, you invariably get the wrong response. Supreme Court pro-abortion jurisprudence is so well established that the Court never even thinks to reconsider whether there really is a right to an abortion to be found in the Constitution — to say nothing of the right to an abortion at a relatively unregulated abortuary. Rather, applying their corrupt precedents, Justice Breyer seemed glad to report that in Texas, the number of abortions has run about 15-16 percent of the pregnancy rate — for a total of 60,000 - 72,000 abortions annually, a number that he did not want to see diminished as a result of the Texas law.
The Court’s final vote was 5-3. Joining Breyer were Kennedy, Ginsburg, Sotomayor, and Kagan. Thus – again – the key pro-abortion vote was provided by Reagan-appointed “Republican” Kennedy. Dissenting were Thomas, Alito, and Roberts. Had Scalia lived, the restrictions on abortuaries would still have been struck, but on a 5-4 vote. If the Republicans in the Senate had confirmed Merrick Garland, undoubtedly the vote would have been 6-3.
Many observers thought that this case would be held over until the next term, and reargued before a full Court. However, that would have only have been true if Kennedy had not joined the majority. And since Kennedy joined the plurality decision in Planned Parenthood in 1992, and in the aftermath of decisions like last year’s Obergefell v. Hodges, it seemed that there was really no reason to have held out that hope.
The Future of Abortion
This case raises the question of how abortion can be resisted in the future. There is little reason to have confidence that any Governor in the country would do his job as a “lesser magistrate” and “interpose” himself to protect unborn children from murder against a murderous Supreme Court. For the future, one of the shortcomings in the Texas legislation that the Supreme Court pointed to was that there were no “explicit legislative findings” as to the benefits of the law. However, there is little reason to believe that the Court would have cared even if there were such findings. Why should it, given its penchant for advancing the “pro-choice” movement, no matter how Dr. Gosnell and others like him are exploiting desperate young women.
Regardless of the Supreme Court’s embrace of a culture of death, it continues to fall upon the rest of us to speak truth. As just one useful strategy, this is a good time to remember the advice of Dallas Pastor Robert Jeffress: When anyone says he is for "A Woman's Right to Choose" — complete their sentence for them "to Murder her Child." And we have the continuous decisions of U.S. Supreme Court over two score and three years for establishing that murder of the innocent unborn continues to be protected from state prosecution, or even regulation, by the modernists Fourteenth Amendment to the U.S. Constitution. Truly, the U.S. Supreme Court has once again uttered lawlessness masquerading as a judicial decision.
William J. Olson and Herbert W. Titus are attorneys with William J. Olson, P.C. of Vienna, Virginia. E-mail email@example.com, visit www.lawandfreedom.com, or follow www.Twitter.com/OlsonLaw.
Editor’s Note: This article was originally published in The American Thinker on June 29, 2016.