The Supreme Court’s most recent foray into abortion jurisprudence highlights what conservative critics call the “abortion distortion.” When the Court reviews abortion cases, left-leaning and moderate Justices throw out otherwise normal legal and judicial standards for the sake of preserving the Court-created structure of abortion rights at any cost. Nowhere is this funhouse mirror-like distortion more clearly seen than in Monday’s June Medical Services v. Russo decision.
In this case, the Court held that the state of Louisiana could not impose certain health and safety restrictions on abortion clinics—the same requirements applicable to ambulatory surgical centers. In his controlling plurality opinion, Justice Stephen Breyer held that these restrictions would lead to clinics closing, and that the burden on a woman’s liberty interest in abortion “outweighed” the health benefits the state sought, rendering the law unconstitutional.
This case and its outcome are almost identical to Breyer’s 2016 decision Whole Woman’s Health v. Hellerstedt. While Chief Justice John Roberts dissented from that 5-3 ruling, he concurred with the four liberal Justices to give them the victory in June Medical, thereby opposing his own former position.
We can see the abortion distortion in June Medical in several ways, starting with how courts review healthcare laws. In our constitutional system, public health regulation has always been a core function of state governments. As a result, courts review state healthcare laws—even when they are occasionally unhelpful or potentially harmful—with a broadly permissive level of discretion, and err on the side of letting the regulation stand.
Yet when it comes to abortion, the posture is completely different. Suddenly, this group of nine lawyers—not doctors or ethicists or elected legislators—adopts the nitpicking attitude of a medical-regulatory review board, critically scrutinizing and semi-metaphysically weighing the health benefits of regulation against the burden on obtaining abortions.
Almost no other medical field or private industry can avoid duly-passed safety laws simply because they allegedly cannot live up to them. The Supreme Court did not even allow California churches—which, unlike abortion clinics, can actually cite a passage of the Constitution’s text that explicitly protects their right to function without undue infringement—to prevail in their challenge to certain Newsom-mandated COVID-19 restrictions several weeks ago.
Yet in this case, the Supreme Court of the United States itself is willing to overturn a state law so some abortion doctors can put their businesses ahead of patient safety. Meanwhile, Louisiana’s elected lawmakers, including the Democratic legislator who wrote the bill and the Democratic governor who signed it, have their work undone by unelected judges.
The distortion also applies to Justice Breyer. Throughout his time on the Court, Stephen Breyer has taken a broadly liberal posture favoring government regulation of industry and healthcare. And yet here, he seeks to exclude abortion practitioners from such minimal requirements as having admitting privileges at a hospital within a 30-mile radius. Abortion is apparently the only industry that Stephen Breyer believes does not deserve vigorous health and safety oversight.
John Roberts is perhaps the most surprising victim of abortion distortion with his newfound exaltation of stare decisis, the notion that the Supreme Court should not overturn its prior precedents without sufficient reason. The Chief has rarely shown concern for overturning past decisions he thought were wrong. On public sector unions, campaign finance law, and other issues with huge real-world ramifications, Roberts repeatedly joined with narrow majorities to overturn everything from 7-year-old decisions to entrenched, decades-long precedents.
Yet somehow, for the 4-year-old Hellerstedt ruling, Roberts declared that stare decisis compelled him to uphold that decision, from which he himself dissented and with which he still disagrees. None of the usual reasons for stare decisis—longstanding precedent, stability in the law, reliance, predictability—clearly apply to a decision with such a short shelf life, supported by such a narrow 5-3 majority.
Roberts is clearly playing a political game. He may be reacting to mainstream voices on the left (like Senators Kamala Harris, Corey Booker, Elizabeth Warren, and Amy Klobuchar) who are open to adding seats, or “packing,” the Supreme Court, as they perceive it shifting right under President Trump. Roberts’ recent pushback against Trump-favored positions indicates this desire to protect the perceived “impartiality” and “respectability” of the Court against liberal critics—conservative critics be damned.
But playing politics is not his job. His job is to follow the rule of law, “to call balls and strikes, and not to pitch or bat.” Those are not my words—they are Justice Roberts’ own words from his 2005 confirmation hearings. He would do well to follow them, and to put down his funhouse mirror.
The California state legislature took some time off in response to COVID-19, but they are back with a vengeance introducing radical pro-legal-abortion legislation. As part of our work in informing our supporters about state legislative activity, we present here the most egregious and dangerous pieces of abortion legislation.
SB 1004 – In California, minors are able to get an abortion without parental consent or notification, and are able to require healthcare providers to keep information about such procedures confidential from their parents. SB 1004 takes this principle further by preventing insurance companies from providing a health insurance policyholder from receiving information regarding a co-beneficiary’s use of “sensitive” services. For example, a father of a family who earns health insurance coverage as compensation through his job will presumptively not receive identifying information from the insurance company if his daughter obtained an abortion through his insurance plan. This would apply to a minor daughter as well as to an adult daughter or a spouse.
AB 2035 – California’s legislature never passes up an opportunity to impose its extremist views on abortion onto children within the state’s influence, particularly in public schools. Foster children are no exception. AB 2035 will mandate that social workers inform foster children aged 10 and up of their rights to obtain an abortion.
AB 3140 – Abortion advocates have long opposed the work of pro-life advocates outside of abortion clinics, and the Supreme Court has beaten back their attempts to restrict our First Amendment free speech rights. California is looking to get around these decisions with new ways to restrict the ability of pro-lifers to engage in sidewalk advocacy. While we have no opposition to portions of this bill that increase penalties for harassing, intimidating, or threatening employees of abortion clinics, we nevertheless oppose any portions of this bill that limit the First Amendment rights of pro-lifers in the name of “security.”
We encourage our supporters to oppose these egregious bills. To find out who your state Assembly Member and State Senator is, click here.
As we got to the end of 40 Days for Life in an uncertain environment for pro-lifers, my coworker and I lost a little steam. When this happened, we put our heads together to figure out how to get our spirit back. Satan loves the playground of discouragement, so we try to be aware of where we are emotionally on the sidewalk at all times.
We decided to turn our focus to others who are suffering, because ALL life matters. We got to work writing Easter cards of encouragement for those who are sheltering in place at elder-care facilities. We wrote what we would have liked to have heard if our places were reversed.
It is such a shame that we often forget the ones who speak the softest, or those who have no voice at all. Without our elderly we would not exist. We would not be grandparents, godparents, parents or children. We would have no opportunity to use our gifts or talents had they not been taught to us or passed down.
We wanted to show another important part of God’s family that they matter. This gave us a lift, and a chance to demonstrate gratefulness and acknowledgement..
We obviously did not get to see any of the recipients but we got to hope and imagine that we brought joy and affirmation. Today we are recharged, restored and ready to do battle on the front line again. Please join us in prayer now, and in person later.