NRL News

Supreme Court eyes “New Judicial Approaches to Abortion Rights”

by | Jun 29, 2016

By Dave Andrusko

Justice Stephen Breyer

Justice Stephen Breyer

We continue today with more follow up on Monday’s downer-of-a-Supreme Court decision which obliterated two portions of a 2013 pro-life Texas law. As you recall HB2 required that abortion clinics meet the standards of ambulatory surgical centers and abortionists were required to have admitting privileges at a hospital within 30 miles of the clinic.

We’ve focused primarily on the dissents by Justices Thomas and Alito and on particularly astute pro-life commentaries. I’d like to return to the 40-page majority opinion written by Justice Breyer and a particularly curious (okay, inane) line of reasoning.

After that I’d pick up an argument from a lower court judge’s decision overturning Alabama’s admitting privileges mandate which will doubtless be used (if it hasn’t already) to “prove” that we must fund abortions and from which Breyer may well have found his inspiration.

Remember: The Abortion Industry and/or those who have persuaded themselves there is no constitutional impediment to abortion on demand financed by your tax dollars are always looking for creative–nay, imaginary–justifications.

Breyer had to address, however inadequately, the elephant in the room: abortionist Kermit Gosnell who murdered three babies he deliberately delivered alive by severing their spinal cords. His reign of terror was the motivation for many clinic regulation laws passed in the past few years.

What did Breyer write Monday in Whole Woman’s Health v. Hellerstedt?

Gosnell’s behavior was terribly wrong. But there is no reason to believe that an extra layer of regulation would have affected that behavior. Determined wrongdoers, already ignoring existing statutes and safety measures, are unlikely to be convinced to adopt safe practices by a new overlay of regulations. Regardless, Gosnell’s deplorable crimes could escape detection only because his facility went uninspected for more than 15 years.

Our issue is not gun rights or gun control. However (as many people have pointed out) Breyer’s reasoning closely mirrors an argument made by gun rights proponents: gun laws will have no effect on criminals, only on people who obey the law.

Does anyone think Breyer, who favors gun control laws, will reprise that paragraph the next time a piece of gun control legislation makes its way to the High Court? Of course not. He used this strained analogy as a means to a predetermined end–to find some justification to eliminate laws intended to protect women and keep a watchful eye on the Abortion Industry not known to be keenly interested in self-regulation.

Moreover, as Live Action News observed

If you are confused, you should be. The Supreme Court is arguing that, since criminals are going to break the law no matter what, we should not attempt to make abortion facilities adopt basic health standards for women in an attempt to stop bad behavior.

[T]he women who are trusting these so-called doctors with what the majority considers a very personal decision deserve much more protection than the Court recognizes. We have moved from an age where abortions were promoted as needing to be “safe, legal and rare” to an age where they merely need to be “legal.”

Make no mistake: Gosnell was not rare and neither were the horrific conditions of his clinic.

It would seem that Justice Breyer glommed on to something we wrote about back in August 2014 in “Strained comparisons, bogus analogies on display in recent pro-abortion court victories.”

In gutting Alabama’s law requiring that abortionists have admitting privileges , U.S. District Judge Myron Thompson searched far and wide for comparisons to fortify his conclusion which included comparing 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 eminent legal scholar the late John Hart Ely, a supporter of legal abortion, once 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.”

As we noted in 2014, former New York Times Supreme Court reporter Linda Greenhouse wrote a celebratory column about Judge Thompson for the Times.

The headline is most revealing– “A Right Like Any Other: New Judicial Approaches to Abortion Rights.”

Greenhouse observed

“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”? Besides eliminating any and all regulations on the abortion industry, we are also being told we have an affirmative obligation to help women “exercise” the “right” to abortion.

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 Judge Thompson) would say yes to all. And so, too, would Justice Breyer.

Categories: Supreme Court