Little Sisters at the Court: a good day

The U.S. Supreme Court tiptoed its way through a jungle of administrative law to hand another victory to the Little Sisters of the Poor. Some people just can’t stop insisting that nuns help provide birth control. In this case, it was the state of Pennsylvania, which deservedly lost on a 7-2 vote

Or, in the words of a headline from CNBC (a business network, mind you): “Supreme Court says Trump administration can let religious employers deny birth control coverage under Obamacare.”

Let me fix that for them: “Supreme Court tells Pennsylvania to get its hands out of nuns’ pockets,” or “Supreme Court recognizes religious liberty interests of Catholic women,” or “Supreme Court says government cannot impose ruinous fines on Little Sisters of the Poor,” or even “Supreme Court lets employers stay out of employees’ private decisions involving sex.”

Read the rest of the post at ellenkolb.com.

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.

After November, we march

I’ve caught flak from various quarters for my decision not to support either the GOP or Democratic nominee for President. Let it fly; that goes with the territory during election season. Let’s look past the election for a minute. Not too far past, either.

Whoever wins – Republican, Democrat, Libertarian, Green – needs to see something a few days after inauguration: a March for Life in Washington that’s impossible to ignore. Peaceful, as always, but disruptive by its sheer volume and the determination of the marchers. It wouldn’t hurt for members of Congress to see that, too, particularly the Senators who will vote on any Supreme Court nominees.

Friday, January 27, 2017 is the date. The March has been moved from its usual January 22 date in order to accommodate the arrangements for the presidential inauguration.

I’m saving up for the trip myself, and keeping an eye out for chartered buses.

I know that financial and logistical factors make the March impossible for me most years. The alternative is the New Hampshire March for Life, sponsored every year by New Hampshire Right to Life, usually held the Saturday before the national March. Come to Concord. The Governor, Executive Councilors, and state reps will need to get the message, too. Marchers are always joined by some courageous and committed pro-life elected officials.

Harry Blackmun and his colleagues on the Supreme Court ensured by the timing of Roe v. Wade that we would have mid-winter weather to contend with on the decision’s anniversary. Last January’s March in Washington was held during a blizzard warning that prompted cancellations of many buses, and I don’t blame anyone who chose to stay home. Blizzards on the day of the March are rare, though. Usually it’s just cold and windy, and we New Englanders can handle that. And if Washington is besieged by weather, there’s always Concord.

Public witness to the right to life is becoming more important, not less.

Plan now.

Weekend Reading: know your rights; Zika; women betraying women

Gerard Nadal, M.D.: A doctor takes on the betrayal by the Supreme Court’s women – of other women (gerardnadal.com)

“As chemical abortions take deeper root, and as hospitals increasingly absorb the lucrative business from the closing of local clinics, the issue of the Texas law will shrink in importance; but the abandonment of women by all three women on the highest court in the land will live and grow in infamy. It will be seen by future generations for what it truly is.” Read the rest of the post.

Jonathan S. Tobin: Planned Parenthood undoes a Zika bill (commentarymagazine.com)

“Funding for Zika was defeated in the Senate on…when Democrats voted it down. Like all Congressional spending bills, this one contained a variety of provisions that came out of the dickering between the two bodies. Among the ‘poison pills’ that offended Democratic sensibilities was a provision that excluded Planned Parenthood from the funding…

“Yet the reason this bill failed can be boiled down to one memo and the memories of the government shutdown crisis of 2013. Faced with the choice of either offending Planned Parenthood or failing to pass a bill that provided the Zika money they had been demanding be allocated for months, the Democrats chose the latter. Moreover, they did so because they were also sure that no matter how partisan and divisive their own behavior, Democrats have come to believe that the media will blame Republicans for any Congressional standoff.” Read the rest of the post.

40 Days for Life podcast: what are your rights on the sidewalk?

From the 40 Days for Life headquarters’ podcast library comes reassuring information about the rights of peaceful witnesses outside abortion facilities. Here’s the link; the relevant information begins around the 8:45 mark.


Alito: “those who value religious freedom have cause for great concern”

In declining to hear a case about conscience rights, a decision coinciding with Fortnight for Freedom, the U. S. Supreme Court just underscored the vulnerability of professionals who refuse in the course of their work to participate in ending human life.

The case involved pharmacists in Washington state who challenged a rule by the Washington Board of Pharmacy. Americans United for Life issued a recent statement summarizing the case.

The U.S. Supreme Court [on June 28, 2016] declined an opportunity to hear Stormans v. Wiesman, a challenge to a 2007 Washington Board of Pharmacy rule that punishes pharmacists and pharmacy owners with religious objections to stocking drugs with known life-ending effects. “Despite this missed opportunity to correct an unconstitutional abuse of power, the Washington State rule that punishes pharmacists and pharmacy owners who respect unborn life can and should be immediately repealed,” said Clarke Forsythe, AUL Acting President and Senior Counsel.

“The rule at issue in the Stormans case is unfortunately one of many examples where abortion advocates are pushing an extreme agenda of coercion under the faulty guise of ‘choice.’  As AUL has written about extensively, Planned Parenthood’s fingerprints are all over the unnecessary and unconstitutional rule,” continued Forsythe.

Chief Justice John Roberts and Justices Clarence Thomas and Samuel Alito disagreed with their colleagues who voted not to hear the Stormans appeal. As this year’s Fortnight for Freedom comes to a close, the words of Alito’s dissent are timely.

I would [hear the case] to ensure that Washington’s novel and concededly unnecessary burden on religious objectors does not trample on fundamental rights….

This case is an ominous sign. At issue are Washington State regulations that are likely to make a pharmacist unemployable if he or she objects on religious grounds to dispensing certain prescription medications. There are strong reasons to doubt whether the regulations were adopted for—or that they actually serve—any legitimate purpose. And there is much evidence that the impetus for the adoption of the regulations was hostility to pharmacists whose religious beliefs regarding abortion and contraception are out of step with prevailing opinion in the State. Yet the Ninth Circuit held that the regulations do not violate the First Amendment, and this Court does not deem the case worthy of our time. If this is a sign of how religious liberty claims will be treated in the years ahead, those who value religious freedom have cause for great concern.