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Strained comparisons, bogus analogies on display in recent pro-abortion court victories

by | Aug 11, 2014

 

By Dave Andrusko

Editor’s note. We posted this story last week and then pulled it after I realized a section had inadvertently been edited out.

U.S. District Judge Myron Thompson

U.S. District Judge Myron Thompson

Over the last many months, we’ve given particular attention to court cases in Texas, Mississippi, Wisconsin, and Alabama. The jury, so to speak, is still out on challenges to laws requiring abortionists to have admitting privileges in Texas and Wisconsin, although we will hear soon from the judges who seem sympathetic to the challenges.

Pro-abortionists have been heartened by decisions that overturned laws in Mississippi and Alabama. What’s particularly interesting is the reliance on bizarre analogies the point of which (although never stated bluntly) is to begin to make abortion an absolute “right” again, something that the 1992 Planned Parenthood v. Casey decision qualified.

For example, as we’ve discussed, a divided three-judge panel of the 5th U.S. Circuit Court of Appeals struck down Mississippi’s requirement that abortionists have admitting privileges at a local hospital in cases of emergency.

The case involved Mississippi’s lone abortion clinic. Judges E. Grady Jolly and Stephan A. Higginson intoned, “We hold that Mississippi may not shift its obligation to respect the established constitutional rights of its citizens to another state.”

As the dissenter, Judge Emilio Garza, keenly noted, the majority relied heavily on a case they admit had “never been cited in the abortion context.” It was the refusal of the University of Missouri law school in the 1930s to admit an African-American; the law school then offered him a stipend to attend a law school in a neighboring state. [In fact Jolly wrote, “Although cognizant of these serious distinctions and although decided in another context…” Talk about a stretch!]

In fact it had no application. Mentioning it just allowed Jolly and Higginson to hitch the “right” to abortion to cases protecting the civil rights of African-Americans.

But when it comes to ignoring “serious distinctions” and different “contexts” and bringing in cases never before “cited in the abortion context,” Jolly and Higginson took a back seat to Judge Myron Thompsons overwrought (and over-written) 172-page decision gutting Alabama’s admitting privileges law.

Linda Greenhouse

Linda Greenhouse

Forget that he took cheap shots at a sitting Supreme Court justice and maligned the motives of the lawmakers who enacted HB 1390 in 2012. The point that Thompson was making—and happily recycled by Linda Greenhouse, formerly the New York Times’ Supreme Court reporter who now writes when/what she wants—was even more outlandish that the comparison Jolly and Higginson dredged up.

He compared the right to abortion to the right to bear arms. “At its core, each protected right is held by the individual,” Judge Thompson opined. “However, neither right can be fully exercised without the assistance of someone else. The right to abortion cannot be exercised without a medical professional, and the right to keep and bear arms means little if there is no one from whom to acquire the handgun or ammunition.”

Where to begin? Start with this. There is a reason pro-abortionists (including Supreme Court Justice Ruth Bader Ginsburg) keep offering up alternatives bases that the Supreme Court should have built its case for abortion on in Roe v. Wade. In the Yale Law Journal, the late eminent legal scholar John Hart Ely, a supporter of legal abortion, complained that Roe is “bad constitutional law, or rather … it is not constitutional law and gives almost no sense of an obligation to try to be.”

By contrast the right to bear arms is clearly found in the Second Amendment, not found lurking in the “penumbras” and “emanations” that Blackmun conjured up as the basis for the right to abortion 41 years ago.

Greenhouse wrote

“By pairing gun rights and abortion rights, Judge Thompson was not just indulging in shock value. He was making a profound point: that a right — any right — without the infrastructure and the social conditions that enable its exercise is no right at all.”

“Infrastructure”? “Social conditions”? What is the “soil” in which abortion will thrive? Funding, state and federal? An elimination of conscience rights? The requirement that states have abortion clinics, even if there is abortion clinic in a nearby state? The passage of federal laws that would eliminate any and all protective state legislation? My guess is Greenhouse (and Thompson) would say yes to all.

Judge Thompson and Greenhouse are arguing that the right to abortion is being regulated out of existence. A lot of sound and fury signifying very little.

The two largest abortion clinics in Alabama are unaffected. Mississippi? As Judge Garza explained, “In 2011, prior to the Act’s passage, nearly sixty percent of Mississippi women who obtained abortions already traveled to other states for these services.”

(What’s the “undue burden” on these women if the Jackson Women’s Health Organization closes because it cannot find a hospital willing to give its fly-in abortionists admitting privileges?)

In the trial, which Thompson heard without a jury, time after time abortion clinic representatives appeared to be unable to explain their unwillingness to seriously try to get abortionists to settle in Mississippi. Moreover as Judge Garza said in the Mississippi case, when local hospitals refuse to give admitting privileges to abortionists, those are the “independent decisions of local hospitals—non-state actors” to reject the abortionists’ applications; the closure would not “result directly from H.B. 1390.”

How about Texas? Planned Parenthood is on a building spree, constructing more and more mega-clinics. Abortion ‘access’ is not a problem.

Greenhouse celebrates the two decisions as instances where “federal judges have demonstrated a new willingness to treat the abortion right as a right among others.”

Actually, her observation two paragraphs later is much more revealing:

‘[J]udges’ willingness to step outside the abortion frame and to weigh, from that broad perspective, whether the abortion right has become unduly burdened is something new and potentially of great value in the struggle to preserve women’s reproductive freedom.”

In other words, if judges can make up imaginary comparisons to rights that are clearly rooted in the Constitution, that’s sure sounds like a lot better footing than Blackmun’s “penumbras” and “emanations.”

It also furthers the abortion agenda: rolling back even the most commonsensical limitations on abortion.