How Supreme Court case June Medical v. Russo may have set up pro-lifers for victory in Dobbs v. Jackson Women's Health

[Today's guest post is by attorney Leslie Corbly.]

The philosophical makeup of the Supreme Court is fluid. With the addition of Justices Neil Gorsuch, Brett Kavanaugh, and Amy Coney Barrett, the judicial philosophy of the majority of the Court’s members has once again shifted. In light of this shift, in April 2021 the Arkansas Law Review published the article “A Costly Victory: June Medical, Federal Abortion Legislation, and Section 5 of the Fourteenth Amendment.” Essentially the authors argue that the Supreme Court case June Medical was a victory for abortion supporters, but an expensive one that may ultimately contribute to a different outcome in the near future. Here I summarize the article for your consideration. For clarity and unless otherwise specified, my parenthetical citations in this post refer to page numbers in "A Costly Victory," linked above.

It is no secret that the recent decision by the United States Supreme Court to take up the case of Dobbs v. Jackson Women’s Health Organization could significantly impact the current legal landscape of abortion rights. A ruling in Dobbs which grants states the ability to regulate abortion prior to fetal viability would be a significant departure from current legal precedent. To properly understand the possible implications of such a ruling it is necessary to understand (1) fetal viability and (2) the connection between viability and the state’s ability to regulate abortion.

A Quick Legal History

Roe v. Wade and the trimester framework.

Viability in the context of abortion legal precedent describes the ability of a fetus to survive outside the womb of a pregnant woman either naturally or through medical support (pg. 6). The landmark decision Roe v Wade set the precedent that access to abortion was a woman’s constitutional right. In the subsequent decision in Planned Parenthood v. Casey the Court held this right stemmed from the Fourteenth Amendment’s Due Process Clause (pg. 4). However, this right was never absolute, and Roe itself recognized the state’s interest in preserving fetal life, developing a trimester framework which applied a series of legal tests through the course of a woman’s pregnancy to determine when abortion was legally permissible (pg. 51). These tests determine the extent to which the state had an interest in regulating abortion either to preserve the health of the mother or the life of the unborn child (pg. 51).

During the first trimester, Roe left a woman’s right to abort in the hands of her physician’s medical judgment. Subsequent to the first trimester, a woman’s right to abort her unborn child could be subject to state regulation, but only on the basis of the state’s interest in preserving the health of the mother. However, once an unborn child passed the point of viability the court held that a state may exercise more limiting regulations, including barring a woman from aborting the fetus, except in circumstances where her life or health is endangered (pg. 51).

Planned Parenthood v. Casey and the "balancing test."
Although the trimester framework was subsequently overturned by Casey the court has consistently ruled that the point of viability is significant and, post viability, states have a greater interest in regulating the practice of abortion to preserve the life of the unborn. Casey established a balancing test, requiring courts to weigh the benefits and burdens of abortion regulation when determining whether a law violated the constitution. This ambiguous balancing test was affirmed in Whole Woman’s Health v Hellerstedt (pg. 2). 

June Medical v. Russo and "significant obstacles."

However, in the Supreme Court’s 2020 ruling in June Medical Services L.L.C. v Russo (which struck down a Louisian abortion law), the Court moved away from the ambiguous balancing test created in Casey and applied in Hellerstedt, opting to take a more deferential stance towards state abortion regulation by allowing an abortion regulation to stand, even prior to viability, if the regulation does not place a significant obstacle in the path of a woman seek a pre-viability abortion (pg. 2).

Effects of June Medical

Abortion advocates propose federal legislation to codify Roe.
Although the Court’s decision in June Medical overturned an abortion law, advocates of abortion reacted swiftly to the Court's deferential interpretation of state regulation of pre-viability abortions. They immediately calling for the codification of Roe through federal legislation, a call echoed by the Biden administration just prior to the President’s inauguration (pg. 3). For years, abortion proponents have desired federal legislation as a vehicle of further codifying the right to abortion, and top Democratic politicians such as Barbara Boxer and Barack Obama have supported such legislation (pg. 3).

The two most common pieces of legislation proposed by abortion advocates are the Freedom of Choice Act (FOCA), and the Women’s Health Protection Act (WHPA). FOCA is the more sweeping a broad of the two legislative agendas, attempting to bar government at any level of authority from denying or interfering with a woman’s right to abortion either before viability or when the woman’s health or life are impacted post viability (pg. 37). Although WHPA would also apply to all levels of governmental authority, the legislation would allow for bans on abortion before and after viability with exception for circumstances where “continuation of the pregnancy would pose a risk to the patient’s life or health” (pg. 37). In addition, WHPA would allow regulations to stand if the government can establish, by clear and convincing evidence, that the regulation “significantly advances the safety of abortion or the health of patients” and that the safety of such services and the health of patients “cannot be advanced by a less restrictive alternative measures or action” (pg. 38).

Congress has limited ability to enact such legislation.
However, the June Medical decision limits the ability of Congress, under Section 5 of the Fourteenth Amendment, to enact the type of legislation promoted by abortion advocates. This is because Congress’s authority under Section 5 is limited (pg. 35). Indeed, the Court ruled in City of Boerne v. Flores that Congress lacked the power to enforce limitations under the Religious Freedom Restoration Act on state and local governments, holding that Congress may not use Section 5 authority to effect a substantive change to the Due Process Clause because “the text of [section 5] [is] inconsistent with the suggestion that Congress has the power to decree the substance of the Fourteenth Amendment’s restrictions on the States” (pg. 35).

Functionally, this means Congress may pass laws to prevent violations of section 5 of the Fourteenth Amendment, but it may not pass laws altering the substance of the Amendment. Laws passed via Section 5 authority must target state and local laws and regulations that “have a significant likelihood of being unconstitutional” (pg. 36). Because the June Medical decision significantly reduced the probability that any given abortion regulation “contravenes a woman’s due process rights” it thereby curtailed the authority Congress has to enact federal legislation designed to undercut the ability of state and local governments to regulate abortion. (pg. 36)

Potential Effects of Dobbs

The possible implications of a Dobbs ruling are significant. Should the Court grant states the ability to limit pre-viability abortions, this would be a monumental decision. To date, the Court has allowed Casey’s prohibition on pre-viability abortion bans to hold (pg 65); in light of such precedent, lower courts have enjoined the enforcement of all pre-viability bans, except one ban of abortions at twenty weeks or earlier (pg. 65). Further, although some sates have bans on abortions ranging from twenty-two to twenty-fours weeks, the constitutionality of such laws is highly suspect, meaning their retention through statutes is likely for the purpose of governments signaling a moral disdain for abortion (pg. 65). 

If the Supreme Court were to overturn the prohibition on pre-viability bans, it would open the door to further regulation limiting abortion thereby further curtailing the ability of Congress to exercise section 5 authority over state and local governments. This would likely lead to further cases appearing before the Court because the Court would be tasked with determining the breadth and depth of the constitutional right to abortion given the abandonment of the current pre-viability/post-viability constitutional framework. Alternatively, should the Court overturn Roe, Congress would lack any authority under Section 5 because the abortion would no longer be recognized as a constitutional right and any regulation of abortion, either by limiting or expanding the right to such a procedure would be decided under the jurisdiction of individual states.

Photo credit Supremecourt.gov

Pro-life feminist groups file amicus brief in Dobbs v. Jackson

Secular Pro-Life is proud to be one of the amici represented by this amicus brief just filed. Details below.

DOBBS AMICUS FILED BY PRO-LIFE FEMINIST GROUPS AND 240 WOMEN SCHOLARS AND PROFESSIONALS  EXPOSES THE LIE THAT WOMEN NEED ABORTION FOR EQUALITY

For Immediate Release: Media Contact: Helen Alvaré, halvare@gmu.edu, Teresa S. Collett, teresa.s.collett@gmail.com 

July 29, 2021- Washington, D.C. In an amicus brief filed in Dobbs v. Jackson by pro-life feminist organizations and 240 women scholars and professionals, amici urge the U.S. Supreme Court to overrule Planned Parenthood vs. Casey (1992) and Roe vs. Wade (1973). Law professors Teresa S. Collett and Helen Alvaré and legal scholar Erika Bachiochi represented amici. 

On behalf of amicus Feminists Choosing Life of New York, Michele Sterlace, Esq., LLM, commented: “This brief overthrows the fiction that women need and rely upon abortion rights to participate equally in civil society; this was central to the Casey Court’s decision to uphold Roe.”  

The brief summarizes the empirical evidence and data relating to women’s economic and social achievements since Roe, and concludes: “There simply is no causal link between the availability of abortion and the ‘capacity of women to act in society.’”  The brief empirically shows that “no consistent correlation” exists between “abortion rates or ratios” and “women’s participation in the labor market and entrepreneurial activities, as well as their educational accomplishments, professional engagement, and political participation.”

“Pro-life feminists have argued for decades that abortion rights harm rather than empower women and their opportunities to advance,” states Sterlace, “and the brief also explores and proves this with objective evidence.”  The brief makes an evidentiary showing that abortion correlates with “ the feminization of poverty, and women’s declining levels of happiness.”  It also reveals that the entire argument that women need abortion to achieve equality is based on a “male normative experience of reproduction as the model for economic and social participation.” This has “actually retarded meaningful accommodation of pregnancy and motherhood in the workplace and other spheres of society.”  

According to Destiny Herndon-De La Rosa, founder of New Wave Feminists, another organizational amicus: “For far too long feminists have been fighting for a piece of the pie while settling for the crumbs. We’re here to demand a future where women are able to participate in society without having to sacrifice their children on the altar of ‘equality.’ We are able to do something men cannot – bring new life into this world. Patriarchy gained its power by using violence against the vulnerable, and we refuse to replicate that model as it has no place in a truly equitable future for every member of the human family.”

And Kathy McQueen, president of Feminists for Nonviolent Choices, another organizational amicus, states: ”Pregnant women, especially poor pregnant women, need economic and social resources, in order to achieve equality, not abortion. The  pro-choice narrative dehumanizes children in utero and their pregnant mothers. It elevates the right to kill unborn offspring as a rite of passage to equal status. This not only twists reality, as the brief demonstrates, but undermines efforts to enact and implement crucial policies necessary for pregnant women and mothers to participate in society on equal footing with men. Roe and Casey have hurt women. It's time both are overruled.” 

To review the filed brief, go to any of the above amici’s websites or https://www.scotusblog.com/case-files/cases/dobbs-v-jackson-womens-health-organization/.

Why We Need a Pro-Life Woman on the Supreme Court

On Saturday, President Trump nominated the Honorable Amy Coney Barrett of the Seventh Circuit Court of Appeals to join the Supreme Court of the United States. Pro-life groups quickly hailed the nomination. Judge Barrett identifies herself as an originalist who is committed to following the Constitution as written. Even legal scholars who support abortion readily admit that Roe v. Wade lacks any basis in the text of the Constitution, so it is a safe assumption that an originalist judge will oppose Roe and support states' ability to enact laws protecting children in the womb. Pro-lifers are also encouraged by Judge Barrett's scholarly writings on the doctrine of stare decisis.

The last time a vacancy appeared on the Supreme Court, Secular Pro-Life organized a campaign urging President Trump to nominate a pro-life woman. Instead, he chose Justice Kavanaugh. This time around, we finally get our wish.

Having a pro-life woman on the nation's highest court is critical for two reasons. The first is a matter of representation. You wouldn't know it from mainstream media coverage, but a majority of American women hold anti-abortion positions. 51% want abortions to either be completely illegal, or only legal in cases of rape, incest, or to save the life of the mother. 62% support a ban on abortions after five months (20 weeks). None of those policies can be enforced while Roe remains in place.

And yet of the four women to serve on the Supreme Court so far, all four have consistently ruled in favor of abortion industry interests. This gross misrepresentation is in urgent need of correction. Of course, even Judge Barrett's successful elevation to the Court will not be enough to give pro-life women a proportional voice, but it's a start. 20% is better than 0%. 

The second reason has to do with a doctrine called the "reliance interest," which liberal Justices invented to rationalize Roe as it came under heavy criticism. The argument is that even if Roe is wrong, we can't turn back now, because women have come to rely on legal abortion. We have, the Court condescendingly tells us, "organized intimate relationships and made choices that define [our] views of [our]selves and [our] places in society, in reliance on the availability of abortion in the event that contraception should fail," and "ordered [our] thinking and living around" Roe v. Wade. Justice Ginsburg took it a step further, claiming that women cannot even "enjoy equal citizenship stature" without the ability to kill our babies. I am a well-educated professional woman, and to say that this notion offends me does not begin to describe my level of disgust. 

Judge Barrett is a living, breathing rebuke to proponents of the reliance interest. She is a brilliant lawyer and scholar, deeply admired even by her legal adversaries. She is also a mother of seven, including a child with Down Syndrome. Those two aspects of her life are not in conflict. Judge Barrett's biography proves that, shockingly, work-life balance is achievable without dismembering any babies. 

And before you go arguing that we secular folks should oppose Judge Barrett because she's a religious extremist whose church inspired The Handmaid's Tale, you should know that's a bald-faced lie which has been debunked even by Vox and the Atlantic, neither of which is friendly to the pro-life cause. Besides, not a single sitting Justice is religiously unaffiliated, and Roe v. Wade itself is steeped in superstitious nonsense. 

The time has come for a pro-life woman on the Supreme Court. Bring on the hearings.

Deep Dive: Federal Elections and the Abortion Rate

Yesterday, Live Action News published an excellent article by Dr. Michael New entitled "No, Democratic presidents do not cause large declines in the abortion rate." The article debunks a recent round of memes which purport to show major abortion declines under Democratic presidents compared to Republican presidents — a claim so stale, Snopes rated it false four years ago.  

Dr. New correctly points out numerous problems with these memes. Among other things, they use data from the CDC (rather than the more reliable Guttmacher Institute data), treating California's refusal to report its abortion data to the CDC from 1997 onwards as if it were an actual decline during the Clinton administration instead of a statistical artifact. They also "neglect to mention that the U.S. abortion rate rose sharply during the presidential administration of Democrat Jimmy Carter." Dr. New does the service of providing the correct numbers:

Ranking those from best to worst (assuming you want a low abortion rate), that's Obama (D), Clinton (D), Reagan (R), Dubya (R), Bush Senior (R), and Carter (D). Data for Trump aren't yet available.

Image via Students for Life

This makes it seem like the occupant of the White House has very little to do with the abortion rate. Maybe all that matters is the state of the economy, you might fairly hypothesize, because studies show that most abortions are motivated by financial distress.

I don't doubt the impact of the economy. And yet we also know from prior studies that abortion restrictions like informed consent, parental consent, and waiting periods reduce the abortion rate. That's why pro-choice states have higher abortion rates than pro-life ones, despite similar pregnancy rates. 

So what gives? Does electing pro-life politicians matter or not?

One thing informed consent, parental consent, and waiting periods have in common is that none of them have been legislated on the federal level. No president, Republican or Democrat, has ever signed one into law. They are all state-level legislation. How you vote definitely matters for babies in your state. (See: the "Tea Party" wave during the Obama administration.)

But that's not to say what happens in D.C. stays in D.C. You may have noticed that the abortion lobby is constantly filing lawsuits over state-level legislation, and they usually do so in federal courts. It thus matters a great deal who a president has nominated to the federal judiciary, especially the Supreme Court of the United States. That effect, however, is time-delayed. Consider the recent setback in June Medical v. Russo, which struck down Louisiana's requirement for abortionists to have hospital privileges. June Medical was decided during the Trump administration, but the five Justices in the majority were appointed by Clinton (Ginsburg and Breyer), George W. Bush (Roberts), and Obama (Kagan and Sotomayor).

It's also important to note that past experience is no guarantee of future results. There are good reasons to believe that abortion policy will become increasingly federalized, and as that happens, the occupant of the White House will have a more immediate impact. The Hyde Amendment, which restricts taxpayer funding of abortion through federal Medicaid dollars, is Exhibit A. The Hyde Amendment has been in effect since 1976, covering all presidential administrations from Carter to Trump and saving over 2.4 million lives. But Democrats in Congress have signaled their desire to kill it if they have the votes to do so in 2021. Destroying Hyde would create a huge, federally-driven increase in the abortion rate.

Dr. New will speak on that very topic during our Out of Hyding virtual rally on Wednesday, September 30 at 9pm Eastern (6pm Pacific). We will celebrate the 44th anniversary of the Hyde Amendment, affirm the dignity of Medicaid kids, and organize to preserve Hyde for the next generation. Registration is free. See you there!

A Supreme Court abortion decision is expected any day. Here's what you need to know.

The U.S. Supreme Court traditionally releases its major opinions in the month of June. We have already seen blockbuster rulings on LGBT employment discrimination and DACA. Next up: June Medical Services v. Russo, which will determine the fate of a Louisiana law requiring abortionists to have admitting privileges at a hospital within 30 miles of their practice.

Image via the Katrina Jackson for
Senate District 34 facebook page

The common-sense, bipartisan law was spearheaded by then-state representative (now state senator) Katrina Jackson (pictured), a Democrat. It is not a direct challenge to Roe v. Wade. Instead, it seeks to harness the power of existing medical institutions to identify and stop abortionists who are especially dangerous to women. As pro-choice author William Saletan noted years ago in his chilling Back Alley series, the medical community knows full well who these shoddy abortionists are and quietly declines to work with them — but historically, they have refused to speak up for political reasons. Admitting privileges requirements make these "open secrets" truly open, and force the abortion lobby to live up to the "safe" part of its empty motto.

Side note: Any news coverage of this case that fails to mention Kevin Work is sham journalism. He's exactly the type of abortionist that Louisiana's law is meant to address. Read more about him here. 

Louisiana's law is similar to the Texas law that the Supreme Court tragically struck down in Whole Woman's Health v. Hellerstedt, although the Fifth Circuit Court of Appeals noted some differences when it upheld Louisiana's law in 2018. Pro-life advocates were horrified by Hellerstedt, which prioritized abortion access and industry profits over women's safety. Hellerstedt was a 5-3 decision, when the Court had only eight Justices due to the death of Justice Scalia. (The three in the minority were Chief Justice Roberts and Justices Thomas and Alito.) Since then, pro-abortion Justice Kennedy has retired, and Justices Gorsuch and Kavanaugh — widely believed to support the right to life — have joined the Court. 

Here are the possible outcomes to watch for in Russo, from worst to best:

• The Supreme Court strikes down Louisiana's law. This would mean that at least one of the Justices believed to be an anti-abortion vote is not, and that pro-life groups have received little in return for their decades of putting up with the Republican Party. If this happens, expect absolute chaos to ensue.
• The Supreme Court upholds Louisiana's law without overturning Hellerstedt. This would essentially ratify the Fifth Circuit's approach. Lower courts would be instructed to consider other states' admitting privileges laws on a case-by-case basis, depending on such factors as the number of abortionists in the state and what criteria the state's hospitals use to grant or deny admitting privileges. 
• The Supreme Court upholds Louisiana's law, recognizes its past mistake, and reverses Hellerstedt. This would be a victory for women's health and babies' lives.
• The Supreme Court finds that the plaintiffs lack standing. This is a long shot, so don't get your hopes up, but a decision on the basis of standing would be huge. The legal concept of standing means that a person can't sue merely because they dislike a law; they have to have a certain level of direct involvement. To give an obvious example, the plaintiffs in the LGBT employment discrimination cases decided earlier this month were, not surprisingly, LGBT people whose employers discriminated against them. In Russo, the plaintiffs are arguing that Louisiana's law unduly burdens women's right to an abortion — but the plaintiffs in Russo aren't women, much less pregnant mothers seeking abortions and facing legal burdens. The Russo plaintiffs are abortion companies whose hired abortionists don't have admitting privileges. Although many past cases have involved abortion companies legally standing in for abortion-seeking mothers (e.g. Planned Parenthood v. Casey and Hellerstedt), allowing that type of substitute standing in a safety regulations case creates a serious conflict of interest. Women's desire to obtain the best possible care and avoid quacks like Kevin Work is directly at odds with abortion vendors' desire to cut costs. If the Supreme Court finally expresses some long-overdue skepticism at the idea that abortion businesses represent women's interests, our legal system could finally escape, or at least reduce, the influence of abortion industry money.

Dr. Michael New of the Charlotte Lozier Institute puts it best:

No decision today on June Medical Services v. Russo

Fasten your seat belt and make sure your tray table is in its upright and locked position -- next week might be a wild week.#ProLife

— Michael New (@Michael_J_New) June 18, 2020

SCOTUS Watch: Which Senators Might Flip?

As the confirmation vote for Supreme Court nominee Brett Kavanaugh grows closer, nerves are rising for what will likely be a tight vote. Kavanaugh needs a simple majority of our 100 U.S. Senators to vote in favor of his confirmation for him to be appointed to the court, and the Senate is currently split 50-49 in favor of the Republicans (one short of 100 total after John McCain’s passing).

If Kavanaugh is confirmed, there is reason to believe Roe v. Wade could be significantly compromised in the coming years, and perhaps overturned after that. Given the stakes, the overwhelming majority of Senators are expected to vote along party lines, with Republicans voting in favor of Kavanaugh’s confirmation and Democrats voting against it. That being said, there are a handful of Senators who may vote against party lines.

For the Democrats, the Senators most likely to flip are Heidi Heitkamp of North Dakota, Joe Manchin of West Virginia, and Joe Donnelly of Indiana. All three of these Senators are up for reelection in November, and as red-state Democrats, they are under pressure from their home states to vote in favor of Kavanaugh’s confirmation.

For the Republicans, the most likely Senators to flip include Susan Collins of Maine, Lisa Murkowski of Alaska, and Dean Heller of Nevada. Collins and Murkowski are pro-choice, and the National Abortion Rights Activist League (NARAL) scores both of them in the 40% range, with Murkowski scoring 42% and Collins scoring 45%. Though these scores are not high overall, they are still very high scores for a Republican. Dean Heller has voted pro-life as of late, but he may flip for the same reasons as the three Democrats mentioned earlier. Heller is a Republican from a relatively blue state (Nevada), and voting against Kavanaugh’s confirmation might help him win reelection in November.

While any of these Senators on either side of the aisle may flip, the Democrats are much more likely to do so than the Republicans. All three of these Democrats voted against party lines to confirm President Trump’s first Supreme Court nominee, Neil Gorsuch, so there is good reason to believe they will do the same for Kavanaugh. On other hand, every Republican voted in favor of confirming Neil Gorsuch. The vote will be tight, but it is most likely that this vote will be nearly identical to the Gorsuch vote, and that Brett Kavanaugh will win a slim majority to become the next Supreme Court Justice of the United States.

[Today's guest post by Pat Thomas is part of our paid blogging program.]

Kavanaugh's Opinion in Doe v. District of Columbia is not pro-abortion

In recent weeks, there have been a few articles in left-leaning media outlets concerning Judge Kavanaugh's opinion in the case of Doe v. District of Columbia, with some suggesting that the opinion allows coerced abortions on people with disabilities. And to be abundantly clear, support for coerced abortions on people with disabilities would be an immediate deal-breaker for pro-life advocacy groups—which is why I was immediately suspicious of the claim. Doe is a 2007 case. How on earth could the Federalist Society, Heritage Foundation, White House bureaucrats, and all of the the dozens of pro-life organizations with an interest in the next Supreme Court nominee all fail to catch an 11-year-old coerced abortion decision while vetting Kavanaugh?

Last week National Review published a rebuttal which called the Doe controversy a "vicious distortion" of Kavanaugh's record and helpfully included a link to his opinion. I happen to be a lawyer, so I decided to analyze the Doe opinion myself. With the Kavanaugh hearings beginning today, now is as good a time as any to sort this out.

I won't keep you in suspense. The Doe case has nothing to do with abortion and the criticism is baseless.

The central issue in Doe was the District of Columbia Department of Disability Services' procedures to authorize surgeries for a small subset of people whose intellectual disabilities prevent them from making medical decisions. Specifically, the case concerned D.C. residents for whom all of the following are true:

1. The person lacks capacity, meaning that he or she "lacks sufficient mental capacity to appreciate the nature and implications of a health-care decision, make a choice regarding the alternatives presented or communicate that choice in an unambiguous manner." The capacity determination must be made by two physicians, at least one of them being a psychiatrist. Not all intellectually disabled people lack capacity under this test.
2. The person has always lacked capacity, and therefore the District can't rely on any previously expressed wishes concerning medical treatment.
3. The person does not have a proxy to make medical decisions for him or her. As stated in the opinion (citations omitted): "D.C. law creates a hierarchy of individuals authorized to make healthcare decisions for persons who have been certified ... as lacking mental capacity. That list includes, in order of priority: a court-appointed guardian or conservator; a spouse or domestic partner; an adult child; a parent; an adult sibling; a religious superior, if applicable; a close friend; or the nearest living relative. The [Department of Disability Services] Administrator makes healthcare decisions for an incapacitated patient only if none of the above individuals is available and willing to do so."
4. And, last but certainly not least, the potential surgery in question is not an abortion. Again, as stated in the opinion: "The D.C. Code also explicitly provides that abortions, sterilizations, and psycho-surgeries may not be authorized, at least absent a court order."

To recap: when a person has a lifelong intellectual disability that has always prevented him or her from appreciating the nature and implications of a healthcare decision, and that person sadly has no guardian, spouse, child, parent, sibling, clergy member, close friend, or living relative to serve as a healthcare decision-maker, and that person has a medical issue that may call for a surgical intervention—other than abortion, sterilization, or psycho-surgery—the Department of Disability Services has to have protocols in place to address all competing considerations and try to reach an outcome that will further the person's health.

The plaintiffs alleged that those protocols were inadequate and failed to give enough weight to the person's wishes. The District of Columbia countered that the person's wishes were impossible to ascertain, and in any event, the protocol did include "efforts to discuss the surgery with the patient at the level of patient comprehension."

Judge Kavanaugh ruled that the District of Columbia's protocols were legally sound. If you read the opinion, maybe you'll agree, and maybe you won't. It's a fairly debatable issue. What's not fair is ignoring the explicit exclusion of abortion in order to paint Kavanaugh as some eugenicist monster.

If pro-choice groups want to find an actual villain, they might look in the mirror: Roe v. Wade itself cites the notorious forced sterilization case of Buck v. Bell with approval.

Last chance: send comments to HHS on the Protect Life Rule

Tomorrow is the deadline to submit your comments to the Department of Health & Human Services in support of the Protect Life Rule. This regulation limits the ability of abortion businesses to obtain government subsidies through the Title X program. Title X is intended to fund contraception, not abortion. The Protect Life Rule will prioritize funding for federally qualified health centers and other community clinics that provide legitimate healthcare, including contraceptives, without killing anybody.

You can read the proposed rule here and submit your supportive comment here. I wrote:

I strongly support the proposed rule. For too long, Title X funds have subsidized abortion vendors. The provision of taxpayer money to Planned Parenthood—which has repeatedly defrauded Medicaid and failed to report the sexual abuse of children, among other scandals—is especially troubling. Federally qualified health centers and other community clinics are far more deserving recipients of Title X funds, and are fully capable of meeting women's nonviolent family planning needs.

Abortion lobbyists have predictably mischaracterized the Protect Life Rule as a "gag rule" that censors doctors. That's nonsense. Abortionists remain welcome to say whatever they like. And the government remains free to direct its tax revenue to deserving healthcare providers that do not destroy innocent human lives.

The Protect Life Rule is not even particularly novel. A similar rule was briefly put in place by the Reagan administration (but soon reversed by the abortion-friendly Clinton administration). Abortion industry groups brought a legal challenge at the time, which the Supreme Court rejected, holding that the funding limitation did not run afoul of the First Amendment; rather, the government "has merely chosen to fund one activity [family planning] to the exclusion of the other [abortion]."

Planned Parenthood would stand to lose, and nonviolent clinics would stand to gain, $60 million a year when the Protect Life Rule is enacted. While we'd still have a long way to go in removing Planned Parenthood's total government subsidy of approximately $500 million a year, this is a substantial first step. Submit your comment today!

SBA List Poll: Voters in Key States Want Kavanaugh Confirmed to SCOTUS

In case you've been living under a rock, President Trump nominated Judge Brett Kavanaugh to fill the Supreme Court seat made empty by Justice Kennedy's retirement. Speculation is rampant that Kavanaugh could be the fifth vote necessary to repeal Roe v. Wade—or at the very least, allow states to regulate abortion businesses like the medical facilities they purport to be, which the Court rejected in Whole Woman's Health v. Hellerstedt.

The confirmation process is bound to be nasty and partisan. The GOP currently holds the slimmest of majorities in the Senate. Possible surprises could come from Republican abortion supporters Sen. Murkowski of Alaska and Sen. Collins of Maine, and/or from any of the several Democratic Senators who are up for re-election in red states.

Yesterday, the Susan B. Anthony List released a poll from some of those states. Respondents in Florida (Sen. Nelson), Indiana (Sen. Donnelly), Missouri (Sen. McCaskill), North Dakota (Sen. Heitkamp), and West Virginia (Sen. Manchin) were asked if they wanted their Senators to confirm Trump's then-unnamed nominee. Even without knowing it would be Kavanaugh, who is widely considered a safe pick, strong majorities supported confirmation:

• 56% in Florida
• 56% in Indiana
• 57% in Missouri
• 68% in North Dakota
• 59% in West Virginia

The numbers highlight the bind those five Democratic Senators face. Will they follow the will of their constituents by confirming Kavanaugh, and risk displeasing their base? Or will they vote against Kavanaugh and have that vote become the subject of attack ads which will resonate with a majority of voters? Neither is ideal heading into November. 

The pollsters followed up with a fascinating second question: “Do you think that the U.S. Supreme Court should decide abortion policy for [Name of State], or do you think abortion policy should be decided by the people of [Name of State] through their elected officials?” 

This is a great way to ask the question. As many have pointed out, polls that ask whether a person supports or opposes Roe v. Wade are highly problematic. Roe is a complex case that legal scholars have written volumes about; it's unfair to assume that the average person understands it. And when pollsters try to explain Roe's holding as part of the question, they invariably do a bad job. Framing the question in terms of who makes abortion policy is much less confusing. It's not perfect—for one thing, it doesn't account for subsequent cases like Planned Parenthood v. Casey and Gonzalez v. Carhart that gave states a bit more room to legislate—but it beats the alternatives. 

And the answers are quite illuminating. In all five states surveyed, voters much preferred that abortion policy be set by legislatures instead of the Supreme Court: 

• 54% in Florida
• 65% in Indiana
• 57% in Missouri
• 67% in North Dakota
• 57% in West Virginia

Those results are great news for the right to life, but we should not take anything for granted. Remember to contact your Senators, especially if you live in one of those key states!

Three takeaways from NIFLA v. Becerra

Yesterday, the Supreme Court handed down a 5-4 decision in favor of the pregnancy centers challenging a California law that required them to post signage advertising state-funded abortion. The majority opinion, which found that the pregnancy centers were protected by the First Amendment, was written by Justice Thomas and joined by Chief Justice Roberts and Justices Kennedy, Alito, and Gorsuch. The dissent was written by Justice Breyer and joined by Justices Ginsburg, Kagan, and Sotomayor.

The case has been amply covered by media of all stripes, so I'll just offer a few thoughts.

We desperately need a pro-life woman on the Court. All three women Justices—who I should note are past childbearing age and come from high-SES families—shamefully voted against the charities that aid low-income mothers in crisis. Already, pro-abortion groups are touting the sad fact that the Court's free speech supporters are all male. This must change. If you haven't already done so, sign the #NextNominee petition to make our next Justice a pro-life woman! A vacancy could come any day.

The central disagreement was how to apply Casey. In the 1992 case of Planned Parenthood v. Casey, the Court held that states could require abortion businesses to disclose the procedure's risks and alternatives without running afoul of the First Amendment. Abortion supporters argued that California's law was analogous to the law in Casey. I previously offered my counter-argument, which I'm pleased to see is similar to the majority ruling:

The licensed notice at issue here is not an informed consent requirement or any other regulation of professional conduct. The notice does not facilitate informed consent to a medical procedure. In fact, it is not tied to a procedure at all. It applies to all interactions between a covered facility and its clients, regardless of whether a medical procedure is ever sought, offered, or performed. If a covered facility does provide medical procedures, the notice provides no information about the risks or benefits of those procedures. Tellingly, many facilities that provide the exact same services as covered facilities—such as general practice clinics, see §123471(a)—are not required to provide the licensed notice.

The dissent's counter-argument rests on the claim that childbirth, like abortion, is a "medical procedure that involves certain health risks." Without getting into the longstanding feminist debate over the medicalization of childbirth, the notion that birth is a medical procedure is certainly news to all the mothers who've given birth without the involvement of any medical professional whatsoever. And while no one doubts that childbirth has risks, going to a pregnancy center does not in any way increase those preexisting risks; if anything, it decreases them by giving women access to free ultrasound exams and other resources. By contrast, the risks of abortion are the creation of the abortionist, and therefore the abortionist should bear the burden of explaining those risks.

Justice Kennedy's concurrence stole the show. The majority did not explicitly rule on the question of whether California's law was meant to discriminate against pro-life people (i.e., unconstitutional viewpoint discrimination), but of course it was. The Justices in the majority debunked the neutral rationales California put forward; for instance, they saw through the argument that California just wants to educate low-income women, noting that if that were the true motivation, the law would not have exempted most clinics that serve the poor.

But Justice Kennedy took it a step further in his concurring opinion, which was joined by all the majority Justices save Thomas (emphasis mine):

This separate writing seeks to underscore that the apparent viewpoint discrimination here is a matter of serious constitutional concern. See ante, at 6, n. 2. The Court, in my view, is correct not to reach this question. It was not sufficiently developed, and the rationale for the Court’s decision today suffices to resolve the case. And had the Court’s analysis been confined to viewpoint discrimination, some legislators might have inferred that if the law were reenacted with a broader base and broader coverage it then would be upheld.

It does appear that viewpoint discrimination is inherent in the design and structure of this Act. This law is a paradigmatic example of the serious threat presented when government seeks to impose its own message in the place of individual speech, thought, and expression. For here the State requires primarily pro-life pregnancy centers to promote the State’s own preferred message advertising abortions. This compels individuals to contradict their most deeply held beliefs, beliefs grounded in basic philosophical, ethical, or religious precepts, or all of these.

Check out that last sentence. Four Supreme Court Justices just acknowledged that an anti-abortion stance can be based on philosophical and ethical precepts rather than just religious ones! Go us!


P.S.: Want more NIFLA v. Becerra coverage? NIFLA itself is holding a webcast tomorrow night.

#NextNominee petitions President Trump to nominate a pro-life woman for the next Supreme Court vacancy

FOR IMMEDIATE RELEASE: Young adult anti-abortion advocates organized by Secular Pro-Life have launched #NextNominee, a campaign to fill the next Supreme Court vacancy with a pro-life woman. The centerpiece of the campaign is a petition hosted at petitions.whitehouse.gov, a federal website that allows concerned citizens to voice their concerns directly to White House officials. If the petition receives at least 100,000 signatures in the next 30 days, the Trump administration will respond.

Link to petition: petitions.whitehouse.gov/petition/nominate-pro-life-woman-next-supreme-court-vacancy 
Link to #NextNominee website: NextNominee.com 

Although approximately half of American women oppose abortion, no pro-life woman has ever served on the nation’s highest court. Current Supreme Court Justices Ruth Bader Ginsburg, Sonia Sotomayor, and Elena Kagan, and former Justice Sandra Day O’Connor, have all been consistent votes in favor of the abortion industry.

“Supreme Court opinions claim women ‘rely’ on abortion to succeed in the workplace, which is insulting. My success does not depend on anyone's death,” said Secular Pro-Life president Kelsey Hazzard, who is also an attorney.

The majority of American women support common-sense abortion limits. According to a December 2017 poll by Marist University, 62% of American women support a ban on abortions after 20 weeks (5 months) of pregnancy—an issue that is likely to be heard by the Supreme Court. The survey also found that 51% of American women either want abortion to be illegal in all cases, or legal only in cases of rape, incest, and to save the mother’s life; that 60% oppose the use of taxpayer funds to pay for abortions; and that 52% believe abortion does more harm than good.

“Discrimination starts in the womb,” said Beth Fox, a #NextNominee spokeswoman who has a rare genetic condition called Myotonic Dystrophy. “My entire life people have used the name of choice to justify their belief I never should have been born. I, like many others, am fed up with it. We need a female pro-life Justice who will stand for equal rights for all.”

“The pro-life female voice needs to be heard in this country, and what better way than to start from the top!” added #NextNominee spokeswoman Gina Mallica. “Pro-abortion does not equal pro-woman."

There are currently no vacant seats on the Supreme Court. Justice Anthony Kennedy, the “swing” vote responsible for many 5-4 decisions in favor of abortion, has been the subject of retirement rumors for years. He is 81 years old. Justice Ginsburg, age 85, is the oldest Justice on the Court. The third oldest, 79-year-old Steven Breyer, is also pro-abortion.

President Trump has pledged to nominate anti-abortion Justices to the Court and has publicly released his short list of potential nominees. There are six women on the short list: Hon. Amy C. Barrett of the Seventh Circuit Court of Appeals; Hon. Allison Eid of the Tenth Circuit Court of Appeals, in the position previously occupied by Justice Gorsuch; Hon. Britt Grant of the Supreme Court of Georgia, whose nomination to the Eleventh Circuit Court of Appeals is currently pending; Hon. Joan Larsen of the Sixth Circuit Court of Appeals; Hon. Margaret Ryan of the U.S. Court of Appeals for the Armed Forces; and Hon. Diane Sykes of the Seventh Circuit Court of Appeals.

Full Text of Petition

Four women have served on the Supreme Court, and all four have consistently ruled in favor of the abortion industry. They have even endorsed the misogynistic notions that women rely on abortion for professional success and that women cannot “enjoy equal citizenship stature” without abortion.

The majority of American women support common-sense abortion limits, and we deserve judicial representation. A pro-life woman on our nation’s highest court will be a living rebuke to those who falsely equate abortion with women’s empowerment.

We therefore call upon President Trump to nominate a pro-life woman to the Supreme Court at his earliest opportunity.

About the Organizers

The #NextNominee campaign is coordinated by Secular Pro-Life, an organization that unites people of every faith and no faith to promote the right to life. It is also endorsed by Pro-Life San Francisco, a non-partisan, non-sectarian group of pro-life Millennials connecting families with resources and resisting the abortion lobby in the Bay area, and New Wave Feminists, an anti-abortion feminist organization that believes all humans should be free from violence for the duration of their lifetime.

Chemical Abortion and the Law

You may have read that last week, the U.S. Supreme Court declined to hear a challenge to a law regulating chemical abortion in Arkansas. The law requires chemical abortion vendors to partner with doctors who have hospital admitting privileges. As a result, two Arkansas abortion centers that do only chemical (and not surgical) abortions, and which cannot find willing partners, are expected to shut down.

This is encouraging not only for Arkansas—where at least 608 chemical abortions took place in 2014, the last year for which data is available—but for the pro-life movement nationally. The implications are significant.

Over the last few years, the abortion lobby has emphasized the strategy of expanding chemical abortion. Industry-friendly publications like Marie Claire and The Guardian have openly mused about a future in which abortion pills are available over the counter, bypassing clinics and all the regulation that goes with them.

This would be disastrous not only for the babies at risk of death and the women at risk of complications, but also for women with wanted pregnancies. There is simply no way to increase access to abortion pills for women without also increasing it for abusive men, who have already shown their willingness to force chemical abortions by slipping pills into their partners' drinks. And those cases are just the tip of the iceberg; since chemical abortion mimics a natural miscarriage, most victims have no idea what has happened.

Last October, the ACLU filed a lawsuit in the United States District Court for the District of Hawai'i, seeking to make abortion pills available in retail pharmacies like CVS and Walgreen's. Although this case doesn't involve removing the prescription requirement (yet), other safeguards to screen out abusers—such as the requirements that vendors receive training and certification from the manufacturer, maintain signed patient agreement forms, and supervise the dispensation of the pills—are very much on the ACLU's chopping block. Those legal proceedings have been delayed, and the government defendants are expected to respond by the end of this month.

It's hard to believe that the Supreme Court which declined to intervene in the Arkansas chemical abortion case would buy the ACLU's arguments for chemical abortion expansion in the Hawai'i case. Stranger things have happened, and Secular Pro-Life will continue to monitor the proceedings, but I would not be feeling optimistic if I were an ACLU attorney. That's bad news for abusers, and great news for mothers and children.

Iowa passes heartbeat bill; abortion industry responds with desperation and lies

Last Friday, Iowa Governor Kim Reynolds signed historic legislation to prohibit abortions where the baby's heartbeat can be detected. The law includes exceptions for medical necessity, rape, and incest.

The heartbeat law will not immediately confer protection on any Iowa children. There will be a legal challenge, and the law will almost certainly be enjoined while the case is pending. And the abortion industry plaintiffs will succeed in the lower courts, which have no power to deviate from unjust precedents set by higher courts. Iowa lawmakers knew all of this when they cast their votes. This is a long-term strategy; it will take a couple of years for the law to reach the Supreme Court, by which time they hope that one or more of the older pro-abortion Justices will have been replaced with a pro-life Justice. If they're right, the Supreme Court will have an opportunity to reverse Roe v. Wade.

Justice Kennedy, who has long provided the decisive fifth vote condemning preborn children to death, has been the subject of retirement rumors for years. He is 81 years old. The oldest member of the Court is 85-year-old Justice Ginsburg, a strong abortion advocate who will surely refuse to retire if there is any chance her replacement will recognize the right to life. Justice Breyer, also a reliable vote against pro-life legislation, is 79.

Even if the heartbeat law is ultimately killed by the courts, however, it still has some value as an educational tool. Recall that the pro-life movement pursued a ban on partial-birth abortion for well over a decade before it was finally upheld by the Supreme Court; during those years, partial-birth abortion was frequently in the news and the public was informed about the brutality of abortion methods. In the case of the heartbeat bill, we're educating the public about prenatal development. The heartbeat bill has forced abortion advocates to adopt the talking point that the heartbeat begins "around six weeks, before some women even know they're pregnant." It's impossible to reconcile that statement with the ignorant clump-of-cells view of abortion, or with prior pro-abortion obfuscation about when the heartbeat begins.

Abortion industry groups are caught off balance, as demonstrated by this unintentionally hilarious quote by a spokesperson for Planned Parenthood's Iowa affiliate:

“The bill weaponizes fetal heartbeat, which is by all accounts an arbitrary standard that bans abortion long before the point of fetal viability,” Lee said in an email to Reuters.

You guys. They think that heartbeats are "arbitrary" and that fetal viability isn't! I actually laughed out loud when I read that.

Another response from the abortion industry has been much less amusing. They've resorted to fearmongering, falsely telling Iowans that medical schools are required to teach abortions, and therefore the heartbeat law will cause the state's only ob/gyn residency program to lose its accreditation, and therefore the state's ob/gyn shortage will get worse.

Wait a second, you might be thinking. If every medical school has to do abortion training to be accredited, how are Catholic medical schools a thing? Right you are. There is a federal law that addresses this very issue: if an accrediting body penalizes a school for not teaching abortions, the school is deemed accredited anyway. But that fact didn't stop the Iowa City Press-Citizen from running an entire article based on the premise that the heartbeat bill could "effectively kill the only obstetrics and gynecology residency program in the state."

I brought this up with Robin Marty, who is one of the most honest pro-abortion journalists out there. You can read our twitter conversation here. Suffice to say, the article is indefensible and its authors, Aimee Breaux and Will Greenberg, should be ashamed of themselves.

Permanently Protect Our Conscience Rights and Support Student Mothers: Oppose Senate Bill 320

Following the tumultuous social events of summer 2017, San Jose State University President Mary A. Papazian sought to reassure San Jose State students during her opening semester address stating, “As a civilized, caring community, we condemn this outrageous, indefensible behavior while affirming our commitment to inclusion, diversity, equity, and respect for individual differences.” A new law being considered at this very moment in our state capital challenges the spirit of Pres Papazian’s call for “respect for individual differences.” This law, Senate Bill 320 or SB 320, would require on-campus student health insurance plans offered by California State University, the California Community Colleges and the University of California to include coverage of the abortion pill, which can be taken up to 10 weeks after a woman’s last period. And without additional safeguards for conscience, SB 320 may one day require all SJSU students, including pro-lifers, to directly fund chemical abortions. The bill will also turn our collectively used Student Health Center into an on-campus abortion center.

This law is deeply offensive to the conscience rights of many SJSU students and is bad policy for the women and community of SJSU. A 2016 poll “found that 53 percent of college aged Americans believe abortion should be illegal in at least most circumstances… That is up 9 percentage points from a 2012 survey conducted by Students for Life, which found 44 percent of 18- to 24-year-olds tended to back pro-life policies and 44 percent pro-choice policies.” These gains in pro-life support come even as these same young voters are overwhelmingly liberal on social issues such as same-sex marriage and drug legalization. Assuming SJSU is representative of college age opposition to abortion, over 15,000 pro-life SJSU students may be forced to fund abortions on campus through required student fees. Abortion advocates constantly argue that abortion is a decision between a woman and her doctor. Why, then, should the law require the student body to become involved?

San Jose State University students protest SB 320

Some supporters of SB 320 contend that these concerns are unwarranted because amended language in SB 320 states that “private moneys” will fund the program. Pro-life students have several issues with this. First, the original language of SB 320 did not include any such provision; the “private moneys” amendments were only added after political pressure from pro-life activists. Second, even this particular language of the bill does not provide for permanent conscience protections. The exact language states: “Nothing in this chapter shall be interpreted as requiring public universities to support implementation of abortion by medication techniques with General Fund appropriations or student fees” (emphasis mine). Therefore, nothing in SB 320 guarantees protection of student fees from forthcoming additions to SB 320 which may alter the funding mechanism, or from overzealous pro-abortion university administrators who wish to divert student fees toward the SB 320 program. Lastly, pro-life students contend that student fee funding for the student health centers is inseparable from the provision of the implementation of SB 320. The overarching infrastructure and employees that will be used to distribute the abortion medication is paid for by student fees, regardless if the medication itself is privately funded or not. Money is fungible and therefore student fees can still be used even indirectly in the implementation of SB 320.

Bills such as SB 320 directly and intentionally circumvent federal conscience protections against the funding of abortion and invent out of whole cloth a positive right to state- or university-funded abortions. The Supreme Court has twice ruled in favor of taxpayer conscience protections like the Hyde Amendment, ruling in favor of the constitutionality of restricting public funding for abortions. In the 1979 case Maher v. Roe, the Court ruled that Roe v. Wade does not establish a woman's right to a free abortion, holding that Roe v. Wade “did not declare an unqualified 'constitutional right to an abortion'” and “implies no limitation on the authority of a State to make a value judgment favoring childbirth over abortion, and to implement that judgment by the allocation of public funds.” The court reiterated that position the following year in Harris v McRae, stating: “The funding restrictions of the Hyde Amendment do not impinge on the 'liberty' protected by the Due Process Clause of the Fifth Amendment held in Roe v. Wade, 410 U.S. 113, 168, to include the freedom of a woman to decide whether to terminate a pregnancy.”

In essence the Court ruled that “regardless of whether the freedom of a woman to choose to terminate her pregnancy for health reasons lies at the core or the periphery of the due process liberty recognized in Roe v. Wade, it does not follow that a woman's freedom of choice carries with it a constitutional entitlement to the financial resources to avail herself of the full range of protected choices.”

Despite the Hyde Amendment protections and the aforementioned judicial rulings, 17 states including California use taxpayer funds to fund abortion. According to a September 2016 report, California’s Medicaid program (Medi-Cal) spent more than $27 million on more than 83,000 induced abortions in 2014. According to California’s Department of Health and Human Services, Medi-Cal provides abortions “regardless of the gestational age of the fetus” and, furthermore, “medical justification and authorization” are “not required.”

The move toward bills such as SB 320, which lack strict explicitly articulated conscience rights of students, is the latest attempt to circumvent the Hyde Amendment’s conscience protections and is yet another indicator that the abortion lobby is moving away from their slogan of “safe, legal, and rare,” to a policy of “any time, for any reason, at no cost.” We at Spartans for Life believe abortion is never void of costs. Abortion is an act of violence which costs a child a lifetime of potential, costs a mother and father the joys of parenthood, and costs our campus community a proper respect for life.

SB 320 offers no choice for a campus pro-life community and no real choice for our pregnant students. SB 320 offers a choice between choosing between one’s education and one’s child. This is not “choice,” this is not “empowering,” this is not “feminist,” and this is certainly not “respecting our differences.” We at Spartans for Life believe California can do better. We believe that women can do anything they set their minds to. We believe all student fees would be better served aiding our pregnant Spartans in being both mothers and students. We believe this policy represents real choice for all our students. As such, we respectfully ask our campus community to make their voices heard and vocally oppose SB 320’s implementation across our state.

[Today's guest post is by Nick Reynosa. He is a student at San Jose State.]

Three Major News Items Today

Mississippi passes 15-week abortion limit: Last night, Mississippi governor Phil Bryant signed a law limiting abortion to the first 15 weeks of pregnancy, except to save the life or health of the mother. Here, for reference, is what a 15-week-old human looks like (via the Endowment for Human Development):



While much media coverage noted that the new law is exceptionally "tough" or "strict," that's only true if you have a narrow, USA-centric frame of reference. Mississippi's 15-week limit is mundane in the context of other developed nations like Spain, France, Germany, and Belgium (14 weeks LMP); Italy (12 weeks LMP); Portugal (10 weeks LMP); and Ireland, Malta, and Poland (right to life recognized without regard to age).

Mississippi's sole abortion business has already filed suit to block the law. It will likely remain unenforced while the case works its way through the court system. The current Supreme Court is 5-4 in favor of abortion, so the law will only be upheld if a Justice soon retires or dies.

Illinois Primaries: Both the Democratic and Republican primary races in Illinois, being held today, are critical for pro-life advocates. On the Democratic side, abortion extremists have targeted Dan Lipinski, one of the last remaining pro-life Democrats in the House of Representatives. His challenger, Marie Newman, is funded primarily by NARAL and Planned Parenthood. Pro-Life Action League, Susan B. Anthony List, Democrats for Life, and many others are working phones and knocking on doors for Rep. Lipinski. Illinois has an open primary; pro-lifers of all stripes, including the independent and unaffiliated, who live in the 3rd Congressional District are strongly encouraged to cross over and vote for Lipinski. We must beat back those in the Democratic Party who would impose an abortion litmus test and treat the fundamental human right to life as a partisan issue.

Meanwhile, on the GOP side, Illinois primary voters have the opportunity to boot Governor Bruce Rauner from office. Gov. Rauner is infamous for signing a bill to destroy the Hyde Amendment in Illinois, introducing widespread taxpayer subsidies for the abortion industry. He betrayed not only those pro-lifers who voted for him, but the more than 144,000 Illinoisans who owe their very lives to Hyde Amendment protections. His primary opponent, Jeanne Ives, is an unapologetic pro-life advocate.

Today at the Supreme Court: The U.S. Supreme Court hears oral arguments today in National Institute of Family and Life Advocates (NIFLA) v. Becerra. NIFLA is an umbrella organization for pregnancy resource centers and clinics, who are challenging a California law that forces them to advertise abortions. Pro-life advocates from across the nation (including our own Terrisa Bukovinac, flying all the way from San Francisco!) are convening outside the Court this morning to stand up for life and freedom of speech. It's going to be an incredible rally, and if you can't make it in person, you can watch it live at the March for Life facebook page.

Down Syndrome Abortion and the Courts

Above: Down Syndrome advocate Frank Stephens testifies before Congress

Last month, Ohio passed a law to prohibit doctors from committing abortions sought in response to a prenatal diagnosis of Down Syndrome. Ohio is the third state to pass such a law. North Dakota was the first to do so; there, enforcement is made easier by the fact that there is only one abortion vendor in North Dakota, and it has not sued to overturn the law. The abortion industry did sue over Indiana's ban on abortion for Down Syndrome, and Judge Pratt of the U.S. District Court for the Southern District of Indiana struck it down in September; that ruling is now under appeal. A lawsuit seems likely in Ohio as well.

The ideal outcome would be for the Indiana and/or Ohio laws to be reviewed by a pro-life Supreme Court, which could use them as a vehicle to reverse Roe v. Wade and Planned Parenthood v. Casey. But we do not have a pro-life Supreme Court, and we cannot count on an anti-unborn Justice's death or retirement to give us a pro-life Supreme Court during the time it will take Down Syndrome abortion bans to work their way up the judicial ladder.

This leaves the alternative path that the pro-life movement has pursued for decades: craft arguments to appeal to Justice Kennedy, who won't overturn Roe but is prepared to accept the legality of at least some limits on abortion. It is Justice Kennedy who provided the deciding vote in favor of the partial-birth abortion ban, among other pro-life victories. However, he ruled against us in the fight to regulate abortion businesses like the medical facilities they claim to be.

How might Justice Kennedy rule in favor of Down Syndrome abortion bans? Simple: point out that they do not impact the core rationale of Roe v. Wade and Planned Parenthood v. Casey.

Judge Pratt's ruling in the Indiana case, while unfavorable, did a good job of summarizing this position:

The State’s argument begins with the woman’s liberty interest as articulated in Casey: "the right of the individual ... to be free from unwarranted governmental intrusion into matters so fundamentally affecting a person as the decision whether to bear or beget a child." (Filing No. 76 at 26, citing Casey, 505 U.S. at 851 (emphasis added)). According to the State, "both the woman’s rights and the State’s interests are different if the pregnant woman decides she wants a baby generally, but not the particular baby she happens to be carrying. A woman has already decided to bear a child. Although her privacy and liberty interests have not completely evaporated, those rights are not as central as they once were."

Judge Pratt rejected this argument, stating that the right to privacy prohibits any state "examination" of the "basis for a woman's choice to make this private, personal and difficult decision." But Judge Pratt's reasoning proves far too much. It would render unconstitutional numerous state laws banning coerced abortion and requiring abortion businesses to screen for coercion, because coercion is a "basis" that the state "examines." And laws requiring informed consent before an abortion can be committed—which the Supreme Court has upheld—could be seen as banning abortions sought solely on the basis of ignorance (e.g., the mistaken belief that an unborn child is "just a clump of cells").

And if a woman has the right to choose not only whether to have a child, but what kind of child to have, wouldn't that require all states to permit wrongful birth lawsuits to enforce that supposed right? Many states prohibit wrongful birth lawsuits, for very good reasons.

These arguments give Justice Kennedy a way to uphold bans on abortion on the basis of Down Syndrome, without upending his prior abortion jurisprudence. In plain English, he can do the right thing for children with Down Syndrome and still save face.

The Supreme Court short list

President-elect Trump has narrowed his short list to replace the late Justice Scalia on the Supreme Court. Politico reports that there are now eight serious contenders.

Judge William Pryor of the Eleventh Circuit Court of Appeals has made no secret of the fact that he opposes Roe v. Wade, both for its shoddy legal reasoning and for its lethal results. In fact, he calls Roe “the worst abomination of constitutional law in our history.” Also in the pro column: he is only 54 years old.

Judge Diane Sykes of the Seventh Circuit Court of Appeals has a mixed record. Pro-abortion groups opposed her nomination to the Seventh Circuit because, as a trial court judge, she expressed admiration for pro-life defendants who had been arrested during a protest. On the other hand, she concurred in a 2012 decision favoring Planned Parenthood in its suit against Indiana, which had passed a defunding law. The majority decision was based purely on the court's reading of a federal Medicaid statute (which the next Congress is likely to amend), and the majority made clear that it found Planned Parenthood's constitutional arguments to be without merit. Judge Sykes, however, declined to sign on to the portion of the opinion rejecting the constitutional argument, which she would have remanded to the lower court.

Judge Raymond Kethledge of the Sixth Circuit Court of Appeals is known for taking conservative positions generally, but I could not find any rulings or public statements from him concerning the right to life. Live Action News expresses concern that Judge Kethledge is overly faithful to precedent, even when those precedents are terribly wrong.

Justice Joan Larsen of the Michigan Supreme Court also has a thin record, having spent most of her legal career in academia. The fact that she clerked for the late Justice Scalia strongly suggests that she opposes abortion, but is no guarantee. It would be poetic to see Justice Scalia's former clerk take his seat on the Court. Demographics count too; so far, all female Justices have been abortion supporters, and a female pro-life Justice could credibly push back against the insulting argument that abortion is necessary for gender equality. Personally, I'd pick Justice Larsen over Judge Sykes. Plus, Judge Larsen is only 48 years old!

Judge Neil Gorsuch of the Tenth Circuit Court of Appeals issued a strong dissent from a decision favoring Planned Parenthood, specifically noting that the Governor of Utah was within his rights to suspend funding to Planned Parenthood in response to the Center for Medical Progress videos. His out-of-court writings also contain statements favorable to the right to life. Judge Gorsuch is 49 years old.

Judge Steven Colloton and Judge Raymond Greunder serve together on the Eighth Circuit Court of Appeals, which rejected a pro-abortion challenge to a South Dakota informed consent law. Judge Greunder authored the opinion, and Judge Colloton joined it. Both judges are 53 years old.

Politico notes Judge Greunder's compelling biography:

His father worked as a janitor and a house painter, at one point paying his son 25 cents an hour to scrape paint. That’s the milder part of the story. In 1986, his father grew enraged after his mother fled to avoid continued spousal abuse. During the argument, his father pulled a gun, shooting Gruender and his sister. The future judge’s father then committed suicide. Gruender suffered a damaged liver and kidney, but he recovered and soon returned to law school. (His sister also survived.)

Something tells me pro-abortion lawyers will have a hard time making the "babies are better off being aborted than born into an unstable family" argument to Judge Greunder's face.

Judge Thomas Hardiman of the Third Circuit Court of Appeals does not appear to have made any rulings or public statements concerning abortion. If I missed something, please let me know.

Readers: who do you like?

Election Reflection

In some ways, nothing has changed.

Regardless of who is in office, all pro-life people have an obligation to advocate for policies that will reduce abortion. Priorities will include confirming a pro-life replacement for Justice Scalia, and preserving the Hyde Amendment (which has saved the lives of over two million Americans) against attacks from the abortion industry. During campaign season, an apparent bipartisan consensus emerged on paid maternity leave; we'd like to see that bear fruit.

For our part, Secular Pro-Life will continue to make the science- and human-rights-based case for the right to life. We'll continue to work with student groups to expand their reach across religious divides. We will continue to do our part to prevent unplanned pregnancies, and to support those who face challenging pregnancies. We'll keep doing what we've been doing, outside the political arena, for the past seven years.

In some ways, everything has changed.

In his victory speech, President-elect Trump pledged to be "president for all Americans" and called for unity among Americans "from all races, backgrounds, and beliefs." I hope, for everyone's sake, that Trump's presidency adheres to that vision. But that is, to put it mildly, a very different vision from the one I have seen Trump espouse for the last year and a half.

The pro-life leaders and organizations that endorsed Trump are now in a position of power and responsibility. They will have the President's ear. I hope that they do not take that for granted, because they won't be the only ones seeking influence. I hope they not only encourage him to pass anti-abortion laws, but guide him toward a pro-life, pro-woman path, emphasizing the need for genuine respect of every human life. And yes, that includes the lives of people of color, people with disabilities, survivors of sexual assault, Muslims, Mexicans, and so on. It may get uncomfortable. I hope these leaders appreciate that our movement (particularly our youth movement) is largely made up of marginalized people, who identify with preborn children for that very reason.

One final thought: I have definitely been guilty of failing to look outside my college-educated social-media echo chamber. I thought Clinton was sure to win. Trump's victory took me completely by surprise. It should not have. I am going to make a concerted effort to expand my horizons, and suggest that we all do the same.