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Analysis: Justice Roberts has some pro-lifers rethinking strategy

By Michelle La Rosa for CNA

Chief Justice of the United States John Roberts is seen in the U.S. Capitol in Washington Feb. 4, 2020. (CNS photo/Leah Millis, Pool via Reuters)

Washington D.C., Jun 29, 2020 / 04:59 pm (CNA).- In 2005, John Roberts’ confirmation as Chief Justice of the U.S. Supreme Court was hailed by many pro-life groups as an encouraging sign in the fight against legalized abortion. With the right combination of Supreme Court justices, they hoped, the court would overturn the 1973 Roe v. Wade decision that established a nationwide “right to abortion.”

Today, 15 years later, Roberts cast the deciding vote in striking down a Louisiana law requiring abortion doctors to have admitting privileges at a local hospital (June Medical Services, LLC v. Russo).

In his opinion, Roberts invoked the principle of stare decisis – the idea that if the court has already ruled on a certain issue, that precedent should generally be respected. He pointed to the court’s decision in Whole Woman’s Health v. Hellerstedt, which struck down a similar Texas law in 2016. Roberts dissented in the 2016 case. In today’s opinion, he said he still thinks the Texas case was decided wrongly, but believes the principle of stare decicis means the question is settled, at least for now.

Stare decisis is not absolute. The court has overturned its previous decisions, in landmark decisions like Brown v. Board of Education and in many smaller and less noted cases. Roberts himself authored one such opinion last year (Knick v. Township of Scott). In this case, however, he says there is not sufficient reason to overturn the previous ruling, even if he believes it to be flawed. Because the Louisiana law in question in this case is similar to the Texas law, he believes the previous ruling should apply in this case as well.

Roberts’ dissenting colleagues were quick to argue that his reasoning was flawed. Justice Samuel Alito noted that the Texas decision was based not on the text of the statute itself but on the concrete consequences of the legislation in the state, which were tied to specific factors in Texas that might not be present in other states. Since the circumstances in Louisiana were different, Alito said, the case should be considered independently rather than defaulting to the previous ruling.

Today’s outcome is a disappointment for pro-life advocates who had been hoping for a favorable court decision. But it has also raised serious questions about a political strategy being employed by some in the pro-life movement.

For the last several years, pro-life laws have been enacted in states throughout the country. Some prohibit abortions for specific reasons, such as a Down syndrome diagnosis or the sex of the child. Others establish requirements for those seeking abortions, such as mandatory waiting periods, ultrasound requirements, and parental notification or consent rules. Still others – such as the Louisiana and Texas laws – establish safety standards for abortion clinics.

According to the pro-abortion Guttmacher Institute, more than 400 of these laws have been passed at the state level in the last decade. Often, lawmakers carefully craft these bills to limit and restrict abortion in a way that will stand up to judicial scrutiny. Roe v. Wade and subsequent court cases established a framework for abortion regulations – the closer an unborn baby is to viability, the more restrictions on abortion are generally deemed to be constitutional. In the earliest weeks of pregnancy, court precedent says, government cannot limit abortion in a way that places an “undue burden” on women.

In recent years, however, there has been a shift of focus in some states, with legislators enacting laws that openly and intentionally violate this framework.

Several states have passed heartbeat bills, banning abortion after a fetal heartbeat can be detected, around six weeks into pregnancy. While these laws have historically fared poorly in court, supporters have advocated their continued passage, hoping that they would end up before a favorable Supreme Court, which could then take the opportunity to deliver a fatal blow to Roe v. Wade.

Last year, Alabama passed a law making abortion a felony. Sponsors were explicit that the legislation was designed to defy Roe v. Wade and intended to draw a court challenge.

Roberts’ opinion today has given pause to advocates of this strategy, some of whom are reconsidering the premise that underlies it.

Four years ago, Donald Trump courted conservative religious voters by promising to appoint only “pro-life justices.” But dividing justices into “pro-life” and “pro-abortion” camps is a dangerous oversimplification of how judges understand themselves. Justices are not politicians, who exhibit loyalty to the platform of a certain party, knowing that they must face voters every few years in a new round of elections.

Court decisions are far more complicated, and rulings incorporate a variety of legal principles and technicalities. While certain judicial philosophies lend themselves more closely than others to a view that recognizes the right to life of the unborn, some pro-life advocates are beginning to realize judges expected to rule in favor of pro-life laws may well continue to rule against them.

With several more state abortion laws working their way through the court system, including some that fly directly in the face of Roe, conservatives may now find themselves increasingly nervous. Rather than either overturning Roe in one fell swoop or chipping away at it slowly, as has been the expectation, these state challenges could backfire, and result in abortion precedents being reaffirmed and further enshrined, pushing the pro-life movement further away from its political goals.

It is not clear how Roberts would vote on some of these cases. Doubts have also been raised about Neil Gorsuch, a Trump appointee who surprised many observers earlier this month by authoring an opinion ruling that sex-based discrimination protections apply to sexual orientation and gender identity.

Already, some political-minded pro-life groups are using today’s ruling to double down on their argument that Americans must vote for Republican candidates, that the next judge appointment will be the one to secure the nail in the coffin of Roe v. Wade. But for some pro-life advocates, today’s ruling has made clear that ending legal protection for abortion is not as simple as appointing certain judges, and that those who see ending abortion as a problem with a solely – or even primarily – judicial remedy may find themselves sorely disappointed.

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  1. As long as the vast majority of people (including pro-lifers) are okay with contraception, there will be abortion. And IVF, and homosexual marriage, and boys entering girls sports, and probably other things we haven’t quite seen yet and don’t have vocabulary for because words just fail.
    None of it will be legislated away. The Supreme Court will not save babies.
    Only when people see that sex is the very mechanism by which God (for reason only known to Him) has decided to create a new human soul–to create something out of nothing–will we see an end to abortion. Or at least a several-generation significant decline in its use, until we all forget once again why contraception is so bad.

    • SPot on! Amazing that one never hears that from clergy! Sloppy! HOw about the fact that some 90% of Catholics don’t go to Confession, but go to COmmunion. Tell me the religion hasn’t been off based for decades then? The clery have let that go, receiving without Confession, for decades. No doubt! they never talk about sin, they never talk about Confession, just like they have omitted many things. The most you get for prolife is an ad at the back of the Church. We are not in good shape in the Church.. because the clery have not been presenting the full teachings of the Church. they run to avoid the moral issues. the tough ones. I would have no idea how to address abortion and the gay predation in the Church, given that for 50 years almost nothing has been said. It’s baked into society and now into the Church. Yes, it started with the Pill, and the clergy were very unhappy since Humanae Vitae was published. They ignored it,and so we have today what we have: vry little knowledge of the faith, no adherence to the guidelines on reception of the sacraments, no idea what the Mass is all about, moral and life issues don[‘t seem to belong in the Church. It all started with the PIll and defiance in the Church against HUmane Vitae. Where do we go from here?

  2. This simply underscores the importance of overturning not Roe v. Wade specifically, but of reexamining the decision in the Slaughterhouse Cases of 1873 which nullified the Fourteenth Amendment and established the precedent that led to Roe v. Wade by making the Amendment mean whatever the Court wants it to mean. As William W. Crosskey explained in his book, “Politics and the Constitution”,

    “So, the Court’s opinion in the Slaughter-House Cases was, undoubtedly, most craftily written; written so as to enable the Court, with a good face, in future cases, to jump either way: to observe the intended meaning of the Privileges and Immunities Clause if that seemed unavoidable, or, in the alternative, to destroy the clause utterly if this seemed safe. And the fact that this elaborate preparation was made also means that the majority Justices saw and fully comprehended the possibility of the intermediate, plain, and sensible meaning of the Privileges and Immunities Clause here expounded, to which, indeed, Justice Bradley called attention, in his dissenting opinion. So, the majority must, as the minority charged, already have determined, if they dared, to destroy this new provision of the Constitution completely.” (William Winslow Crosskey, Politics and the Constitution in the History of the United States. Chicago, Illinois: University of Chicago Press, 1953, 1130.)

    In other words, Slaughterhouse vested the Supreme Court with virtually unlimited “raw judicial power” and the ability to legislate from the bench at will.

  3. Roberts noted in his opinion that no one even asked the court to overturn Roe v Wade in these cases. He said this because he believes Roe v Wade can be overturned. However, in order to do that, the court must be presented with the right case. This was not the right case. Roberts noted that the liberal justices had used a method of deciding the case that was invalid. He basically said “This case is exactly like the case we heard last term, and the result must be the same, because of Stare Decisis.

    Everyone wants the Justices to cease being justices, and become political hacks. So now the Court, according to some, is supposed to decide things in favor of Conservatives, no matter what the law says, no matter what the Constitution says. But this simply makes the Supreme Court our new legislature – the only one that matters.

    What matters to Roberts is that the Court return to being a court. Courts can only decide the case before them, and if it is not the case to overturn Roe v Wade, then very little can be done. The Court is not a political branch. Conservatives had better not start demanding that it become one. Because then you are just like the liberals.

    The Court lately seems to be going out of its way to talk much about when precedents can be overturned and when they cannot. Roe will be overturned. It just needs to be done at the right time and with the right case.

  4. The idea that judges are not political is false. On major issues of contention, one always finds Ginsberg, Breyer, Kagan, and Sotomayor voting the same way, in line with the principles of the Democrat Party. It seems that only Repiblican-appointed judges change their view of the Constitution and what it means/requires. Despite what Roberts has claimed, there ARE Obama judges, Clinton judges, Trump judges, etc.

  5. I’ve been following the Court for years. Roberts had a very consistent record until about two years into the Obama administration. His consistent record changed overnight with the Obamacare decision about 8 years ago. He’s been playing politics ever since. Why?

    First, for the court decisions that Obama/liberals care about, I’ve observed that Roberts will vote with the liberals. However, if a conservative justice votes with the liberals, then Roberts will usually vote with the conservatives. In other words, Roberts is a conservative who always ensures that the liberal view prevails on important cases.

    Second, two things happened around the time that Roberts changed. The first is that Obama gave a State of the Union speech. During the speech, Obama made a verbal barb against the Supreme Court’s decision making skills. Repulsed by the barb, Justice Alito slowly nodded his head back in forth in reaction. Within a year, there were also two media reports that journalists had made complaints that someone appeared to have hacked their computers in highly sophisticated attacks. Even though both journalists were liberal, they both had written critically of Obama.

    This leads me to believe that Obama realized through the “State of the Union” incident that he wouldn’t be able to get the Court’s conservatives to budge on issues, especially Obamacare. To change this, he leaned heavily on one of his corrupt intelligence appointees (probably the NSA) to hack the computers of the Court’s conservatives for the purposes of blackmail. They found it on Justice Roberts computer.

    In my view, the possibility of blackmail needs to be included in the vetting of future Supreme Court justices.

    • Given all that we now know about the anti-Constitutional scheming and machinations of the Obama administration, it shouldn’t surprise anyone if such turns out to be the truth. Just sayin’

  6. “Today, 15 years later, Roberts cast the deciding vote in striking down a Louisiana law requiring abortion doctors to have admitting privileges at a local hospital (June Medical Services, LLC v. Russo).”

    “In his opinion, Roberts invoked the principle of stare decisis – the idea that if the court has already ruled on a certain issue, that precedent should generally be respected.”

    How can an opinion “strike down” anything? An opinion is not law.

    Apparently, I am to be the lone voice in the wilderness, but it is impossible from a moral or Constitutional perspective for abortion to be “legalized.” The Supreme Court is not a law-making body-it decides cases-and because abortion is not mentioned in the Constitution (which only applies to the federal government), it is a state issue (by the 10th Amendment), and can’t be reviewed or “struck down” by the Supreme Court on Constitutional grounds. Furthermore, of course there can be no just “law” passed (by any government) which allows the direct killing of an innocent human life. The right to life is an inalienable natural right. Any “law” which allows the abridgment of this natural right violates the natural law and therefore is unjust.

    Roe vs. Wade was a piece of legal sophistry, and was an evil, unjust, and false judgment. That it has passed muster as a perfectly valid decision (which somehow has “legalized” abortion by “striking down” state laws against abortion) in the public square exposes the general ignorance of the population and the tacit complicity of those who should know better and either do not know, are silent when they shouldn’t be (or their voices are being excluded by the mainstream media), or secretly support the wickedness.

  7. Strategy isn’t working. The Left TOOK OVER. Then there’s the recent PEW study revealing that only 4 percent of sermons are on abortion. Failure. Failure to teach the Faith, failure to defend and protect marriage, failure to procreate, failure to push back as if our very lives depended on it. Now, even the Church takes a knee. What exactly was anyone expecting. Now I go to Mass and hear prayers for Unity! What could that possibly mean.

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