Justice Ginsburg, RIP

U.S. Supreme Court Justice Ruth Bader Ginsburg has died at the age of 87 after a long period of declining physical health. She had long been the Court’s most outspoken and passionate defender of abortion.

She’s in the hands of a merciful God. Perhaps she’s now picking up the thread of a conversation with her fellow Justice and firm friend, the late Antonin Scalia.

I can’t think of any judicial figure who has done more over the past couple of decades to inspire me and spur me on. She wouldn’t quit. She was awesomely, incredibly tenacious. I’ll carry an indelible memory of her in the news, in robes and lacy jabot, gaunt from cancer but sharp of wit and mind.

She constantly, implacably rejected the right to life even as she promoted what by her lights were the rights of women. It’s one of history’s great ironies that she’ll go down as a women’s rights advocate, when her advocacy was clearly based on the assumption that no human being, male or female, had a right to live until granted one by someone else.

Even so, I think pro-life activists can learn from her.

Don’t live behind an intellectual or emotional moat. Have a life. Love your family. Cherish your friends.

Don’t let anyone else tell you you’re wrong when you know perfectly well there’s injustice going on.

Speak and write intelligently, persuasively, and without apology. That’s “and,” not “or.”

Don’t expect anyone to fight your battles for you. It’s fine and necessary, however, to cultivate allies to fight your battles with you.

Persist. Then persist some more.

A tall order, perhaps, but Justice Ginsburg was up for it. Can anyone defending life settle for less?

U.S. Supreme Court, 5-4: Abortion Providers Don’t Need Hospital Admitting Privileges

The U.S. Supreme Court today struck down a Louisiana law requiring an abortion provider to have admitting privileges at a hospital within 30 miles of the abortion facility. The case was June Medical Services v. Russo. The vote was 5-4, with Justice Stephen Breyer writing for a majority that included Justices Ginsburg, Sotomayor, Kagan, and Chief Justice Roberts.

Justice Breyer concluded his opinion by saying that the Louisiana law placed a “substantial obstacle” between a woman and an abortion, thus making it in violation of the 1992 Casey decision. Anything that happens in the wake of an abortion – hemorrhaging, for example – is apparently none of the Court’s concern.

Breyer also cited the 2016 Whole Women’s Health decision, regarding a Texas law, in striking down Louisiana’s statute.

Separate dissents were filed by Justices Alito, Thomas, Gorsuch, and Kavanaugh.

The Louisiana law did not affect the legality of abortion itself, did not shutter any abortion facilities, and did not address the right to life. It was supposed to be strictly about women’s health. Women’s health lost. The June Medical decision, however Justice Breyer views his handiwork, is about the rights of abortion providers, period.

Chief Justice Roberts was the swing vote

The standard of care (so to speak) for abortion excludes the need for the abortion provider to have hospital admitting privileges in case a patient suffers a complication. Any medical professionals who take issue with that can complain to the Justices.

Don’t bother with Justices Breyer, Ginsburg, Sotomayor, and Kagan. Go straight to Justice Roberts. He agreed with the decision, but not for the same reasons as his fellow majority Justices, each of whom is well-known to be abortion-friendly. He concluded that the Louisiana law had to be overturned because the Court had ruled in 2016 that a similar Texas law be overturned. Stare decisis, don’t ya know. “The question today however is not whether Whole Woman’s Health [the Texas case] was right or wrong, but whether to adhere to it in deciding the present case.”

One wonders if this guy would have voted against Brown v. Board of Education back in the 1950s, since it overturned Plessy v. Ferguson, the “separate but equal” case that kept racial segregation in place for decades. Brown was a unanimous decision. Can you imagine a dissent like the one Roberts released today? The question today is not whether Plessy was right or wrong

I’m trying to imagine the Chief Justice as he tried to figure out how to agree with the majority without looking like he agreed with it. He could have just signed on to Breyer’s opinion without comment, as did the women on the Court. But no. He wanted to make sure everyone knew his hands were tied by stare decisis.

He could have arrived at a different conclusion if he had cared about a glaring procedural question in the case: the standing of the plaintiffs. Did abortion providers as a group have any business bringing the case, without a single named patient’s rights having been violated? The Court today said yes. A different conclusion by Justice Roberts would have changed the outcome.

I wish I could take credit for a Facebook post from an acquaintance of mine, posted a few minutes after the June Medical decision was released: “Are there any statues of Justice Roberts? Asking for a friend.” With nothing to pull down, I’m left with objecting to his concurrence.

Excerpts from four minority views

Justice Clarence Thomas dealt with the issue of standing at the very beginning of his 20-page dissent. “As is often the case with legal challenges to abortion regulations, this suit was brought by abortionists and abortion clinics. Their sole claim before this Court is that Louisiana’s law violates the purported substantive due process right of a woman to abort her unborn child. But they concede that this right does not belong to them, and they seek to vindicate no private rights of their own.” [emphasis added]

Thomas’s dissent didn’t rest on procedure alone, though. Earlier Court decisions on abortion “created the right to abortion out of whole cloth, without a shred of support from the Constitution’s text. Our abortion precedents are grievously wrong and should be overruled. Because we have neither jurisdiction nor constitutional authority to declare Louisiana’s duly enacted law unconstitutional, I respectfully dissent.”

Next up was Justice Samuel Alito, opening his dissent – respectful dissent, of course – by blasting his colleagues’ reasoning. “The majority bills today’s decision as a facsimile of Whole Woman’s Health v. Hellerstedt [striking down portions of a Texas law in 2016]…, and it’s true they have something in common. In both, the abortion right recognized in this Court’s decisions is used like a bulldozer to flatten legal rules that stand in the way.”

The most recently-confirmed Justices weighed in as well. June Medical is hardly a case where either one was called upon to rule on the right to life, but their dissents bear consideration nonetheless.

Justice Gorsuch: “The judicial power is constrained by an array of rules. …Individually, these rules may seem prosaic. But, collectively, they help keep us in our constitutionally assigned lane, sure that we are in the business of saying what the law is, not what we wish it to be. Today’s decision doesn’t just overlook one of these rules. It overlooks one after another….To arrive at today’s result, rules must be brushed aside and shortcuts taken.”

I’ll leave finer minds than mine to ponder how that squares with Gorsuch’s recent opinion that sex includes gender identity under Title VII.

Justice Kavanaugh, you may recall, got a confirmation vote from Sen. Susan Collins (R-ME) only after assuring her that he would respect Roe. Not a promising commitment. But in his brief dissent in June Medical, he agreed with one of Justice Alito’s points, that the factual record behind the case was incomplete. There simply weren’t enough facts in the record for him to be willing to throw out a duly enacted state law.

effect on new hampshire

New Hampshire has no requirement that abortion providers have admitting privileges, or even that they have any medical credentials whatsoever. In the last quarter-century, women’s health has never been enough of a concern to change that. June Medical therefore doesn’t overturn anything New Hampshire has on the books.

What will happen is that attempts to rectify New Hampshire’s situation will face an even steeper uphill battle than before.

Edited to clarify that the overturned law was “supposed to be” strictly about women’s health.

Norma McCorvey, R.I.P.

A few days ago, Abby Johnson on her Facebook page called for prayers for Norma McCorvey, who was very ill. I am now hearing that McCorvey has died at age 69, having lived for 44 years in the shadow of Roe v. Wade, the Supreme Court decision that bore her pseudonym.

McCorvey went public, affirming her real identity and refusing to embrace being “Jane Roe.” Eventually, in the midst of a tumultuous life, she repudiated the Court decision and became pro-life.

Embed from Getty Images

On a visit to Texas last year, I went to Mass at a small chapel  in downtown Dallas. The pastor turned out to be the man who had ministered to McCorvey when she professed the Catholic faith. Rather than talk about her, he demurred: “Leave her alone. She’s been too much used.”

Too much used. The attorneys who represented her in Roe can take some credit for that. For the briefest of overviews about McCorvey and the court case that thrust her into American history, read Live Action’s post from earlier this year, 7 Things You Didn’t Know About Jane Roe of Roe v. Wade.

I think of her as one of the voices to trust whenever I hear an abortion advocate say “trust women.”

“I realized that my case, which legalized abortion on demand, was the biggest mistake of my life….but now I’m dedicated to spreading the truth about preserving the dignity of all human life from natural conception to natural death.”

“[I]t doesn’t make any difference what religion you are, or how young you are or how old you are, I think if they get up and go to these abortion mills, and stand there – and they don’t have to do anything, they can just stand there and pray, I think that would make a lot of difference. We have to be seen in numbers.”

May she rest in peace.

 

Deal with it: life after the Court’s latest misstep

I have a constitutional right to substandard care, as long as abortion’s involved. At least that’s what U.S. Supreme Court Justice Breyer and four of his colleagues think. All women, pro-choice and pro-life alike, have reason to choke on that.


In Whole Woman’s Health v. Hellerstedt, the Court tossed out hospital admitting requirements for abortion providers and requirements that abortion facilities meet the same standards as ambulatory surgical centers. Gosnell must be loving this.

I’m not. I was discouraged for about forty-five minutes, then I got angry. The decision stinks. Even so, I have to deal with it.

I’ll deal with it like this.

  • Witness. Recommit to 40 Days for Life with its peaceful and decidedly un-political witness to clients and workers at abortion facilities.
  • Demonstrate. Marches for Life in Washington and in my state capital next January, rallies at the State House:  simple ways to remind the Justices and their abettors that they haven’t settled anything.
  • Demand stats. Keep working for an abortion statistics law. Without reliable stats, people like Justice Ginsburg can chant about how “safe” abortion is.  There are no reliable uniformly-collected nationwide public health statistics to back that up. Ask the Centers for Disease Control. Its abortion surveillance reports are full of footnotes about the different figures kept by different states, and about the lack of information from several states including my own.
  • Protect whistleblowers. If a worker at an abortion facility goes public with concerns about facility conditions, is the worker protected from reprisals? Time to find out.
  • Remember Gosnell, from grand jury report to verdict.  Breyer mentioned the Gosnell scandal in the Whole Woman’s Health decision, only to dismiss its relevance. He has the devil’s own nerve being so cavalier about women’s health.
  • Fight public funding of abortion providers who with their support of Whole Woman’s Health are in favor of making substandard care a Constitutional right.  

A tall order, all that – until I’m reminded that five Supreme Court Justices, including three women,  consider women’s health to be less important than the business interests of abortion providers.

That’s unacceptable. Pushback starts now.

 

Freedom of (some) information: SCOTUS rejects hearing on NHRTL case

DSCF9895The Supreme Court of the United States giveth, and the Supreme Court taketh away, and sometimes the Supreme Court says “go away.” An important New Hampshire case got the go-away treatment on November 16, as the Court declined to hear New Hampshire Right to Life v. Department of Health and Human Services. 

As my constitutional law professor stressed to me years ago, “A decision not to make a decision is still a decision.” This one went the wrong way.

NHRTL president Jane Cormier said, ““We would have been thrilled if the U.S. Supreme Court had taken on our case. NHRTL has been very concerned with the lack of transparency within the Obama administration. Despite the fact the NH Executive Council voted down the funding of PPPNE in 2011, US Health and Human Services chose to fund Planned Parenthood without going through proper state approval or even follow federal regulations requiring competitive bidding.”

Jane Cormier, NHRTL President (E. Kolb photo)
Jane Cormier, NHRTL President (E. Kolb photo)

This was effectively a victory for Planned Parenthood of Northern New England, which since 2011 has fought efforts by New Hampshire residents to find out how a federal grant to PPNNE seemed to appear out of nowhere after the New Hampshire Executive Council in June 2011 denied a PP contract proposal. NHRTL sought documents under the federal Freedom of Information Act (FOIA) to find out how the federal grant was made. PP produced some of the requested documents, with parts redacted. It refused to produce others – in particular, its Manual of Medical Standards and Guidelines. FOIA grants exemptions for “trade secrets” and material that could harm a party in a future competitive bidding process, and PP successfully claimed that the Manual falls under that exemption.


By the way, NHRTL’s FOIA request for the Manual was not out of line. PP had to produce its Manual to the government in order to get the federal grant – a point made by two Justices who dissented from yesterday’s announcement.

It would have taken four out the nine Supreme Court justices to accept the case. Normally, denials are made without comment. In this case, though, Justice Clarence Thomas took the trouble to publish his reasons for wanting to grant a hearing, and he was joined by Justice Antonin Scalia. They are troubled by conflicting lower-court rulings in FOIA cases about documents that are exempt from release. “The First Circuit’s decision warrants review. It perpetuates an unsupported interpretation of an important federal statute and further muddies an already amorphous test. For these reasons, I respectfully dissent from the denial of certiorari.” (See the PDF of Justice Thomas’s remarks at page ten of this link at supremecourt.gov.)

Neither Thomas nor Scalia took the side of one party over the other. They simply pointed out that lower courts in FOIA cases around the country have made conflicting rulings about what can be exempted from FOIA requests. That’s the sort of situation that normally makes a case ripe for Supreme Court review. I wonder if the Court would have taken the NHRTL case if the names of the parties had been different.

Alliance Defending Freedom, which with local attorney Michael Tierney represented NHRTL in court, released a statement after this week’s Court action. “HHS says it can’t release the documents because doing so might affect Planned Parenthood’s ‘competitive position’ if it faces a commercial grant competitor in the future. HHS also refused to produce information about its own debates over how to sell the controversial decision to the public.”

A related but separate petition arising from the 2011 Executive Council decision is pending before the New Hampshire Supreme Court, New Hampshire Right to Life and Jackie Pelletier v. New Hampshire Director of Charitable Trusts Office (docket #2015-0366).

“New Hampshire’s Executive Council recently voted to again eliminate state funding for Planned Parenthood,” noted Cormier. “We will need to be vigilant to ensure this type of back-door unaccountable funding does not occur again.”

Meanwhile, as it did in 2011, PP blames the Executive Council for attacking women’s health care by denying PP a contract a few months ago. It’ll be interesting to see PP’s 2015 financial statements, which should reveal how much or how little PP is shifting its priorities away from public policy ($1.5 million in 2014, plus a lobbyist’s salary) and towards clinical care.