A major opportunity for the pro-life movement

The March for Life in Washington, DC, January 27, 2017. (Jeff Bruno)

Congressional Republicans think that the balance of the Supreme Court has tipped

A group of more than 200 members of Congress, including 39 Republican Senators, and 166 House Republicans, have signed an Amicus Brief arguing that Roe v. Wade and Casey v. Planned Parenthood “should be reconsidered and, if appropriate, overruled.”

The brief comes in support of a Louisiana law that would require abortion doctors to have admitting privileges at nearby hospitals. The Supreme Court will hear oral arguments challenging the law this March as critics have argued that it poses an “undue burden” on access to abortion.

Much of the brief documents the egregious abuses by abortion doctors in the state of Louisiana — citing the disturbingly high number of disciplinary actions against abortion providers, as well as many health and safety violations in Louisiana abortion clinics. In defense of the Louisiana law, the Amici show “that abortion providers’ interests are at odds with their patients’ interests,” and that the law should be upheld. But it is difficult to uphold the law because to do so sets it up to endless challenge under the “undue burden” test which has added to the unworkability of abortion law in the United States.

The brief argues that the “already unworkable standard set out in Roe and Casey” has been aggravated by Whole Woman’s Health v. Hellerstedt (2016) which ruled 5–3 that Texas could not place similar restrictions on abortion providers because of the “undue burden” such standards would create for women seeking an abortion. Yet this test of burden that came with Casey, and was aggravated by Hellerstedt, is “vague and opaque,” leaving American citizens unprotected by the law.

The Amicus brief highlights how the Supreme Court might think about the March challenge to the Louisiana law as an opportunity to rethink landmark judicial precedents which have become unworkable in the courts, causing “herculean struggles” in dozens of similar cases.

The doctrine of stare decisis is often invoked in defense of Roe and Casey. It is the preference to see judicial precedents as binding the court to their past judgments. But the Amicus brief rightly states that “stare decisis is not an ‘inexorable command,’ much less a constitutional principle… Instead, it is a prudential and pragmatic judgment.” In fact, the court has frequently overruled past judgments when they present themselves as legally unworkable. And this is precisely the pragmatic point at which we find ourselves today.

“Forty-six years after Roe was decided, it remains a radically unsettled precedent: two of the seven Justices who originally joined the majority subsequently repudiated it in whole or in part, and virtually every abortion decision since has been closely divided. Furthermore, Roe’s jurisprudence has been haphazard from the beginning. Roe did not actually hold that abortion was a “fundamental” constitutional right, but only implied it. This ambiguity was compounded by the Court’s concluding “summary” of the Roe holding, which nowhere mentioned abortion as a fundamental right, strict scrutiny analysis, or the need to “narrowly tailor” regulations. Instead, the Court only required that regulations be “reasonably relate[d]” to the State’s interest…After two decades of inconsistency, the Court officially disavowed “fundamental right” status for abortion and strict scrutiny review, adopting instead an “undue burden” test in Casey…But Casey did not settle the clarity of the “undue burden” standard. As a result, consistency and predictability continue to be undermined as federal courts struggle to apply the Roe/Casey standard.

It is a significant Amicus brief for being signed by 207 elected members of Congress including two courageous Democrats. But more than anything, the brief signals that congressional Republicans think that the balance of the Supreme Court has tipped, and the Louisiana case represents a major opportunity. It is the first abortion case the Supreme Court will take up with Justices Neil Gorsuch and Brett Kavanaugh on the bench.

The obvious question is whether the doctrine of stare decisis will hold, in which case the Court will decide the case more narrowly, perhaps along similar lines as Hellerstedt, or whether the Supremes will consider overruling Roe.

The Amicus brief concludes “Roe has been substantially undermined by subsequent authority, a principal factor the Court considers when deciding whether to overrule precedent. Casey clearly did not settle the abortion issue, and it is time for the Court to take it up again.”

The backlash among abortion activists has been predictable. The president of Planned Parenthood inveighed with defiance against the well-reasoned amicus brief as a “trick,” an “attack” on a “basic right.” But the truth is that an amicus brief is not a trick, and abortion is not a basic human right at all. It denies living, existing human beings in the womb the right to exist.

Overturning Roe or Casey will not ban abortion. Congress would have to legislate that unborn children are persons under the 14th Amendment which stipulates that no state shall “deprive any person of life, liberty, or property, without due process of law.” The Constitution gives this power not to the Supreme Court, but to Congress. It’s about time that the Supreme Court see it that way too.