Denver Newsroom, Jul 7, 2020 / 05:00 pm (CNA).-
Even after the U.S. Supreme Court’s overturned a Louisiana law regulating abortion clinics, one law professor says that longstanding abortion precedents could still be overturned, even if the makeup of the court does not change.
“Given the right case, a strong enough factual record developed by state legislatures and supported at trial, I believe that the current majority on the Supreme Court could overturn Roe and Casey, and return the question of abortion to the states to resolve through the usual political processes,” University of Notre Dame law professor O. Carter Snead told CNA July 7.
On June 29 the U.S. Supreme Court overturned a Louisiana law holding abortion clinics to the same standards as other surgical centers.
Its 5-4 decision in the case June Medical Services, LLC v. Russo ruled that the state’s law requiring abortion doctors to have admitting privileges at a local hospital posed substantial obstacles to a woman’s access to abortion, without significant benefits to the safety of women.
The decision was written by Justice Stephen Breyer, with Chief Justice Roberts filing a concurring opinion. In his concurrence, Roberts said that Louisiana’s law imposed restrictions “just as severe” as those of a Texas law struck down by the court in 2016. Thus, according to the “legal doctrine of stare decisis,” he said, Louisiana’s law “cannot stand” because of the court’s previous ruling in 2016.
The Supreme Court heard a similar case about Texas safety regulations for clinics in the 2016 ruling Whole Woman’s Health v. Hellerstedt.
Roberts, long considered a skeptic of pro-abortion rights jurisprudence, had dissented from that 2016 ruling against the Texas law. He joined the dissent of Justice Clarence Thomas which criticized “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.’”
For Snead, the latest decision was disappointing, but also a “road map” for continued efforts.
He lamented that Roberts failed to join four other justices in “affirming the constitutionality of a modest health and safety law for women seeking abortions, namely, the requirement that abortion providers have hospital admitting privileges within thirty miles of where the abortion is performed.”
“Nothing in the Constitution forbids Louisiana from enacting such a law. But Chief Justice Roberts felt bound to strike it down under the prudential doctrine of stare decisis because it was so factually similar to a Texas law invalidated four years ago in Whole Woman’s Health v. Hellerstedt (in which Chief Justice Roberts dissented).”
Snead thought the four justices who dissented in the Louisiana case were right that stare decisis did not require rejecting the law.
However, even with the Supreme Court’s apparent dedication to a recent precedent, Snead was hopeful that pro-abortion rights decisions like 1973’s Roe v. Wade and 1992’s Planned Parenthood v. Casey could be overturned.
“No one in June Medical Services asked for Roe or Casey to be overturned, and Chief Justice Roberts applied Planned Parenthood v. Casey without affirming or endorsing it,” said Snead.
“He made it explicitly clear that he does not believe the Court can or should balance a woman’s self-determination against a state’s interest in the life of an unborn child. But this is the very calculus from whence the right to abortion came in Roe and Casey. So it’s clear that Chief Justice Roberts believes that Roe and Casey are conceptually unsustainable.”
“That leaves the issue of stare decisis as the final obstacle to convincing him to undo the injustice of Roe and Casey. It is clear from his concurrence that pro life litigants need to explain why principles of stare decisis do not require Casey and Roe to be sustained,” he said.
In a July 4 essay for the First Things website, “The Way Forward After June Medical,” Snead argued that Roberts’ concurrence is “the controlling opinion for purposes of precedent” and “leaves pro-life litigants on a better jurisprudential footing than before.”
“Most important, June is a road map for tailoring arguments to the new swing vote on abortion, Chief Justice Roberts,” Snead said. “It is certainly tempting to give up because there is still so far to go. But in the face of setbacks in the struggle for the equal protection of the law for every member of the human family, born and unborn, we must remind ourselves that none of it matters. We must find a way to win.”
Roberts’ concurrence acknowledged that the 2016 law was wrongly decided. For Snead, a case can be “readily made” to address Roberts’ concerns about precedent because of the unstable place of abortion in constitutional law. He wrote “it is built on outdated and dubious factual predicates.”
Snead told CNA that American jurisprudence on abortion “has never offered a stable, coherent, or predictable legal framework; it has been re-theorized multiple times, thus reducing its precedential standing; and there is no evidence that women have structured their lives around access to abortion, nor evidence that their personal or social flourishing depends on it.”
He said Roberts’ concurrence puts forward a “new standard.” If a state’s abortion restrictions face legal challenge, the state needs only “to demonstrate that it is pursuing a legitimate purpose via rational means.”
“This is a very low standard that states can almost always meet,” said Snead, saying this standard allows states “far more latitude to restrict and regulate abortion than before.”
“Indeed, the Supreme Court just vacated and remanded for reconsideration two cases where lower courts had previously struck down a parental notice law and a law requiring an ultrasound 18 hours prior to an abortion,” Snead told CNA.
“States should continue to pass laws that respect and protect the intrinsic equal dignity of all human beings, born and unborn, and extend the basic protections of the law to unborn children and their mothers,” Snead said. He advised a combination of abortion restrictions and laws that strengthen “the social safety net” for pregnant mothers and families.
States should make it easier for men and women to care for their babies or, where not possible, to make an adoption plan, he suggested.
“And in our own lives, we all have the duty to extend to all our brothers and sisters, born and unborn, love, respect, and radical hospitality,” he said.
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I have been keeping him in my prayers. I have attended Holy Mass at a chapel that he blessed many years ago. There are many of his sermons and appearances online and I highly recommend them. We need his presence more than ever.
Cardinal Burke is the only Vatican Cardinal to reply back to a letter I wrote. I am wearing out my beads for him.
The Cardinal is a prominent vaccine sceptic. I pray not only for the Cardinal for his quick recovery from COVID but also and above all for the rightist conservative media propagandists that they turn away from and repent of their death dealing (ironically promoting “my body, my choice” pro-choice and anti-life ideology) work in the disinformation and misinformation about the vaccine they have infected upon people like the Cardinal and a lot of Catholics as well.
Can’t we just pray for his healing and leave the divisions aside?
We don’t have all the answers about this epidemic and probably won’t for many years. At this point in time I’m not sure we even have all the questions.
May God bless Cardinal Burke and restore him to good health and send this affliction away. Amen.
That cells derived from aborted babies were used in the designing/testing phase of all three vaccines available in the US and in the production phase of one of them is neither disinformation nor misinformation.
Leila,
You wrote: “Rightist conservative media propagandists”
Do you think this phrase may have been overdone? 🙂
Let’s pray that when he recovers, if he recovers, he will stop with the anti vaccine, anti science propaganda and encourage his listeners to get vaccinated. I worry about every one he infected while contagious and they many who died because they couldn’t get a ventilator. He’s lucky he was able to get one,
Let us pray that when he recovers he will have the great joy of knowing he was not complicit in the evil of harvesting tissue from babies murdered by abortion.
Thank you Leslie
Thank you, Lynda. God bless you!
According to Charlotte Lozier Institute both Pfizer and Moderna used abortion resources in producing their vaccines. On WORLD OVER August 12 2021, Arroyo said enough explicit words that would exculpate these vaccines of abortion taint: the two did not use “abortion-derived cells in production”. It was in the very first part of the program, the segment with Sirico and Lawler. I think that this should be corrected and that Arroyo should use his upcoming program to clarify the position.
I join in prayers for Cardinal Burke and have asked others to pray as well. I also pray for anyone ill with COVID-19 or who will be ill. I think Cardinal Burke has faced many challenges conscientiously and bravely and is an inspiration. Listening to him is a joy.
Found via BIG PULPIT, Dr. Fauci told VIROLOGY JOURNAL August 22 2005, that HCQ is a wonder treatment for SARS/coronaviruses.
Now it could be that his contrary stance for COVID-19 arises from the fact that technically, COVID-19 is not a corona virus.
I am not a scientist as such but I maintain COVID-19 is not a corona virus as previously that term was applied.
It would seem that either way Dr. Fauci has some explaining to do!
http://apriestlife.blogspot.com/2021/08/fraud-dr-fauci-said-hydroxychloroquin.html
It could be that over the past 16+ years much more has been learned about the treatment of many types of virus and that the efficacy of certain treatments that initially looked very promising have been shown to be ineffective.
On the other hand doctors of repute use the HCQ in the present and have made a positive record by far in results; yet it is not being upheld – not even “officially” pursued. Dr. Flavia Grosan of Romania insists that the ventilator is meant to be used intermittently after treatment with medicines and with the treatments continuing. One of the things she has boasted about is that she has kept almost all her patients out of hospital, who also had recovered.
Where I live the emphasis in the private practice of a handful of doctors is on regular style oxygen; also I heard of a doctor who uses oxygen tent in order to be as gentle as possible.
I am not a doctor. I suspect HCQ aids osmosis so that the immune system gets at the disease. On the other hand (I think), hydrocortisone penetrates cells and would help blunt the disease within there, which gives the immune reaction an advantage.
If as I contend COVID-19 is not a corona virus, it would appear the HCQ helps treat it anyway, quite fortuitously.
Sister Wanda Boniszewska, please intercede for dear Card. Raymond Burke.
Cooperation, appropriation, and vaccines relying on fetal cell line research, by Stephan Kampowski, for The Catholic World Report
January 24, 2021
Praying for him! Also praying for all those w/those “ far right” illogical ideas!! God gave us brains to avoid all of this needless suffering & death!! Yes , Your body , your choice— well you now have caused the needless suffering & death of so many !Young & old !! I think Our lord is shaking his head, saying what is wrong w/my people???
“God gave us brains to avoid all of this needless suffering & death!!”
All? That goes contra all of human history, logic, and experience.
Hi Carl, Focusing on this interpretation of Gail’s use of the word ALL is being a bit literalist, don’t you think? In the context of Gails comment it would be reasonable to interpret the suffering she is referring to all that is caused by an adherence to illogical ideas, ie needless suffering from Covid caused by the lack of co operation with mitigating strategies for decreasing the spread of the virus, the lack of co operation being motivated my Ideology rather than common-sense, or the practical application of scientific knowledge specific to the spread of the virus.
In this light Gail’s comment is entirely reasonable.
I cannot understand the reasoning behind your comment.
While I’m at it I would like to take the opportunity to thank you for your diligence in doing the job you do here. No doubt it is a very demanding vocation and I greatly appreciate the great job you do of the many difficult tasks involved. Ditto for all the other moderators, editors and staff.
No, I think my comment was fair and on point, especially considering that even if one interpreted Gail’s comment as you do, it would still be contra all of human history, logic, and experience–even if that history only dated back to March 2020. Apparently, both you and Gail (using my reading skills, which date back to when I was three years old) think that all of the illness, suffering, and deaths from COVID has been due to people not wearing masks (which are essentially useless, as the data and evidence show) or getting a shot that leads to another shot, which leads to a booster shot, which may help, unless of course you still get sick, etc., etc. No matter how you slice it, Gail’s comment is not rational; in fact, it seems mostly ideological.
“I cannot understand the reasoning behind your comment.”
Clearly.
In your explanation you have failed to establish on what grounds Gayle’s original post is contra to all of human history, logic, and experience.
Firstly you narrowed the implications of her comment to two issues that of the wearing masks and that of vaccines. You have failed to take into account effective strategies for slowing the spread of the virus to lower the curve so a resulting overwhelming of hospital resources and staff is avoided. I do not see where Gayle nor I even mentioned in specifics masks and vaccines.
Furthermore is seems a bit ridiculous to assert that Gayle and I think that all of the illness, suffering, and deaths from COVID has been due to people not wearing masks and avoiding the vaccine. This is not my view. I do believe that, being spread by air borne particles, in confined spaces, the wearing of masks slows the spread and are of assistance in preventing contamination. Also of assistance is the regular washing of hands and other strategies known and advised by epidemiologists and virologists. Ideology is not a determining consideration with how I come to my point of view. So far in the state of Victoria where I live we have managed to prevent hospitals and other services from being overwhelmed. We have followed the advise of competent epidemiologists not because of Ideology but as a reasoned response to the nature and presence of this virus. A comprehensive understanding of the nature of this virus is an ongoing process and given how it mutates it is a shifting ground.
An expression of this type should be an acceptable contribution to this debate and by any means does not merit an accusation of being contra to all of human history, logic, and experience. Cardinal Bourke, being a leader has a duty of care in the leadership he provides and is not above accountability or critique in this regard and accountability is not nor should ever be a partisan endeavour.
With your ability to move goalposts, you really should work for the CDC or the WHO…
The origin and cause of suffering, pain, and death (and even likely stupidity) is revealed in the first chapter of Scripture. The superior endowment of intellect in Eve and Adam’s prelapsarian state part has been taught and accepted since the Early Church Fathers first contemplated it.
Let those with eyes to see and brains to reason use them as God would have us do. Sans a passive-aggressive stance, I thank you for your work with us fallen creatures, Carl.
You would Probably have been right there in the early years of the Church saying “oh, go on, pinch a little incense to the gods, God gave us brains to avoid all this suffering and death.”
Leslie, another seemingly needless spiteful comment, in this instance aimed at Gayle, showing some consistency in this regard with your responses to those who legitimately express a different perspective than yours.
My own mother found this character trait the source of much distress in her early marriage in her relationship with the female parishioners of the Portland parish in the 1950’s.
Carl, without an explanation of what you are referring to in the overall gist of my reply I am led to believe I may have actually scored a goal.
Oh! Let me get your thinking straight!
You say, “Yes , Your body , your choice— well you now have caused the needless suffering & death of so many”
So, you seem to say that those who have refused a vaccine are the reason, the cause of those who have suffered and died from coronavirus. Is that your position?? Your statements surely seem to suggest that.
What’s the name of the game are you playing?
Your mother has my deepest sympathy.
It was not needless, nor even seemingly so; and it wasn’t spiteful. It was accurately pointing out her un-Christian attitude, since her argument seems to be that physical suffering and death are the absolutely worst possible things that could happen to anybody. Don’t like the analogy I made? Here’s another. Her attitude is the same as someone who would have told the early Christian martyrs, “God gave us brains to avoid suffering and death, by clinging so stubbornly to your conscience you’re endangering your relatives and other Christians who might also be arrested and killed.”
Informed conscience:
https://www.vatican.va/archive/ENG0015/__P60.HTM
II. The Formation of Conscience
1783 Conscience must be informed and moral judgment enlightened. A well-formed conscience is upright and truthful. It formulates its judgments according to reason, in conformity with the true good willed by the wisdom of the Creator. the education of conscience is indispensable for human beings who are subjected to negative influences and tempted by sin to prefer their own judgment and to reject authoritative teachings.
1784 The education of the conscience is a lifelong task. From the earliest years, it awakens the child to the knowledge and practice of the interior law recognized by conscience. Prudent education teaches virtue; it prevents or cures fear, selfishness and pride, resentment arising from guilt, and feelings of complacency, born of human weakness and faults. the education of the conscience guarantees freedom and engenders peace of heart.
1785 In the formation of conscience the Word of God is the light for our path,54 we must assimilate it in faith and prayer and put it into practice. We must also examine our conscience before the Lord’s Cross. We are assisted by the gifts of the Holy Spirit, aided by the witness or advice of others and guided by the authoritative teaching of the Church.55
What I find really disturbing is how the sociopathic leftcaths are crowing over Cardinal Burke’s illness and implying that he somehow deserved to contract Covid for being a “vaccine critic”. It’s just plain disgusting.
Yes, Johann it’s deeply sad but not unexpected.
Johann, I am not sociopathic! In no way am I implying Cardinal Bourke somehow deserved to contract Covid for being a “vaccine critic”. Nor have I read any other comment implying so. I do not neatly fit into the box you seem to want to squash me ( and all others you label as ‘left’ into. This is the example of an unfortunate pattern of thinking and communicating that is frequently displayed in comments here. How is it that you think this way? You make a tiny little mean minded box made up of your mostly false assumptions, and judgements of someone you perceive as the other (us and them) and you put a whole person into it then proceed to call them disgusting etc etc! Is this behaviour in pursuit of honouring your faith? Perhaps because you fail to see the distinction between discussion from differing positions and attack of the person? There is always hope. What do we have at our disposal? All of us? Faith Truth and Reason pursued in the spirit and mindset of love. Is your action in pursuit of any of these? Leftcaths??? No wonder the Body Of Christ is wounded. Endemic toxic thinking! No though that we all in fact might need each other, our differences moderated by faith truth and reason in the spirit of love and applied reconciliation in order to be whole as the Body of Christ.
To answer your question Meiron, I’m not playing a game and i accuse no one else of playing a game. My reference to kicking a goal was in response to Carl’s comment of shifting the goal. I don’t believe i shifted the goalposts of the subject, rather my comment pursued the subject further. Last night I chose not to comment further on this thread because of the focal point of the article was Cardinal Bourke’s grave illness not the wider debate. This morning I read Johans comment and felt the need to address it’s tone and effect and to explain myself so this thread does not finish in a message of brokenness but rather in the hope of at least some common ground while acknowledging differing points of view.
The original Pelagian heresy is precisely the subjugation of the Commandments. How then are they going to resolve what they have tried to do with “neo-Pelagianism”?
Pelagian heresy primarily revolves around original sin denialism. One can do whatever then – obey (this or that) commandments, build socialism, save planet, practise cannibalism.
And precisely this heresy, among others (most notably gnosis), is being taught at contemporary universities and churches.
The Pelagians’ approach to the Commandments can be found in their various discussions with St. Jerome. Some very poignant quotations used to be in the WIKIPEDIA article on Pelagianism but I noticed the article got changed around some time before Placuit Deo and these are no longer collected in one place on the internet I can identify.
A question for consideration for those who consider the CovidVax complicity in abortion. Should persons who are required to take heart medication, which virtually all are developed in some form in conjunction with embryonic stem cells cease taking their meds? Also, there is the real prospect of developing all meds without the use of Embryonic stems cells, “Adult cells altered to have properties of embryonic stem cells [induced pluripotent stem cells]. Scientists have successfully transformed regular adult cells into stem cells using genetic reprogramming. By altering the genes in the adult cells, researchers can reprogram the cells to act similarly to embryonic stem cells” (Mayo Clinic).
And if that person suffering from a heart condition declines to cease taking his meds, is he therefore complicit in the abortions from which the embryonic stem cells were taken?
Also, if a person with a heart condition knowingly continues with meds tainted by embryonic stem cell research, is he as complicit with the abortions also guilty of serious sin? Or is there no sin? What of someone physically compromised is considered heroic by refusing the CovidVax, is that heroism due to avoiding serious sin, or any sin? But if there is no sin for remote complicity what accounts for the heroism? I ask these questions because as a priest I must counsel parishioners who are led to believe by a large segment of Catholics that somehow the CovidVax is evil, and to refuse it is virtuous. Personally I have deep respect and affection for Cardinal Burke and respect his decision, although I don’t believe it sets a standard for heroic virtue.
You have to distinguish between life threatening heart condition and covid jab taken by healthy man because of traveling, restaurants, and so on. The latter is morally defective even if no murders involved since the jab itself is always hazardous not to mention that it not properly tested yet.
I think the “yes or no known in advance” for every single situation is not the way; and I think Cardinal Burke has not professed such a thing. It depends on circumstances and ultimately personal knowledge and understanding obviously.
Some situations will require a definite no. The fact is we have to be ready. We have to be growing into the maturity of faith.
Meantime, it is not simply about drugs that are tainted with abortion; it is also about industries at work in a conjunction with abortion becoming more and more integrated with it (and with other evils). This requires various other reactions not merely identifying the products in order to refuse to use them.
In some instances alternative products and producers are available but it means we have to find out about it in order to act responsibly.
If, hypothetically, a layperson has charted a true course but the priest has started arguing with him not to do it, wouldn’t be fair to point out that that part of the Church is at risk of becoming incurvatus in se?
So in some cases the act will not be immediately the priest’s but then: is that priest ready to be heroic too?
Leila M. Lawler put her very incisive comments here.
https://www.catholicworldreport.com/2021/01/24/cooperation-appropriation-and-vaccines-relying-on-fetal-stem-cell-research/