NRL News
202.626.8824
dadandrusk@aol.com

Battling more nimbly and harder on all fronts is the formula to protect pro-life gains and make new ones

by | Jan 9, 2014

 

By Dave Andrusko

Supreme Court Justice Antonin Scalia

Supreme Court Justice Antonin Scalia

What sets the teeth of the New York Times editorial board to grinding is passage of pro-life legislation. Judging by a quasi-coherent rant in yesterday’s newspaper

“The Texas law is part of the surge of anti-abortion measures — in the guise of health and safety protections or based on a scientifically dubious theory of fetal pain — approved in Republican-controlled states over the past three years.”

the editorial board must be down to its collective gums.

The Texas law at issue is one familiar to readers of National Right to Life News Today: HB2 made most famous by the momentarily successful filibuster of state Senator (and current gubernatorial aspirant) Wendy Davis.

Let’s talk a look at “Abortion Restrictions in Texas and Beyond” and see what we can glean. There are two provisions, one already in place and the other schedule to take effect in a few months.

Pejorative language aside, they’ve got correct much of the history (albeit necessarily distilled). As we’ve explained, U.S. District Judge Lee Yeakel ruled in October that requiring abortionists to get admitting privileges at a hospital within 30 miles of the abortion clinic “is without a rational basis and places a substantial obstacle in the path of a woman seeking an abortion of a nonviable fetus.”

Shortly thereafter “A three-judge panel of the United States Court of Appeals for the Fifth Circuit overturned his injunction on the rule’s enforcement,” The Times wrote, “and the Supreme Court, in an alarming 5-to-4 opinion in November, declined to upset the panel’s ruling.”

The Times never allows a little thing like the reasoning behind the panel’s decision and the Supreme Court’s unwillingness to issue a stay at the request of pro-abortionists, to get in the way of its predetermined conclusion.

For example, the panel, composed of Judges Priscilla R. Owen, Jennifer Walker Elrod, and Catharina Haynes concluded, “[T]here is a substantial likelihood that the state will prevail in its argument that Planned Parenthood failed to establish an undue burden on women seeking abortions or that the hospital-admitting-privileges requirement creates a substantial obstacle in the path of a woman seeking an abortion.”

To which Justice Antonin Scalia added (in responding to the four justices that wanted to stop the law from being implemented while challenges went forward), “In sum, the dissent would vacate the Court of Appeals’ stay without expressly rejecting that court’s analysis of any of the governing factors. And it would flout core principles of federalism by mandating postponement of a state law without asserting that the law is even probably unconstitutional.”

Scalia noted that the Court of Appeals’ panel had concluded that it had to consider four factors when deciding whether to issue a stay and that the first two are “the most critical”: “whether the State made a strong showing that it was likely to succeed on the merits”; and “whether the State would have been irreparably injured absent a stay.”

Scalia examined the dissenter’s opinion and wrote that “it thus fails to allege any errors, let alone obvious errors, in the Court of Appeals’ determination that the two ‘most critical’ factors weighted in favor of the stay.” (He also wrote that the dissenters fared no better in rebutting the appeals court panel’s conclusion that the other two factors weighed in favor of the state of Texas.)

We could examine the Times’s overheated treatment of another provision of the law—which does not go into effect until this fall—but let me just say this. Pro-abortionists would have you believe that abortion clinics are spic and span, safe, where you find top-drawer medicine being practiced. The other implication is that, financially, they are practically running on fumes.

We—you and I—know otherwise, which is why requiring abortion clinics to meet the standards of surgical facilities is both proper and necessary to protect women’s health.

The Times’s editorial concludes

“To stand a chance of rolling back these restrictions, supporters of abortion rights will need to fight harder and more nimbly than ever on three fronts — in the courts, in legislatures and at the ballot box.”

To which we would respond if we wish to keep secure the gains we’ve already made and to make additional inroads, we must fight harder and more nimbly not just “in the courts, in legislatures and at the ballot box” but also at the one-on-one level where hearts can best be turned.

Please join those who are following me on Twitter at twitter.com/daveha. Send your comments to daveandrusko@gmail.com.

Categories: Legislation