By Dave Andrusko
No pun intended here, but I was surfing the web this afternoon, looking for something entirely different, when I ran across this fascinating quote. Jonatan Mårtensson is a Swedish soccer player who once said, “Feelings are much like waves: we can’t stop them from coming, but we can choose which one to surf.”
How apropos in light of a post I read earlier that appeared on the pro-abortion website rewire.news. “When Will These Attacks on Abortion Rights End” asks Jessica Mason Pieklo, who teases the answer to her own rhetorical question with the remainder of the headline: “You won’t Like the Answer.”
Pro-abortionists, perhaps not surprisingly, flip flop between expressing adulation (for example, when states like New York pass abortion until birth legislation) and apocalyptic predictions of “the end of Roe” which is a lot of the time, given that the pro-life surge continues to roll in like a succession of ocean waves. To continue the surfing metaphor, the former is akin to peacefully paddling out before starting to ride the wave, the latter is like trying to surf a Tsunami.
As the headline indicates, Pieklo does not spend a lot of time on what are, from her perspective, good tidings. “There have been glimmers of good news,” she writes. By this Pieklo means those courts which at the same time we are fighting a pandemic, have made it impossible for states to (correctly) deem elective abortions a non-essential health service.
“That’s all good news,” she writes. “But it’s good news tempered through the lens of a cascading attack on abortion rights that has only become more brazen as anti-choice lawmakers grow increasingly confident they’ve placed enough judges on the bench to re-criminalize abortion.”
A trifle over the top, wouldn’t you say, but that’s where you go when you anticipate a wipeout. What leads Pieklo to such a gloomy conclusion?
*We begin with the above reference, which is to the many, many judges nominated by President Trump and confirmed by the Senate. “He [Senate Majority Leader Mitch McConnell] has helped usher through the confirmations of a record number of judges — 193 — during Trump’s presidency, including two Supreme Court justices and 51 circuit judges,” wrote NBC News’ Leigh Ann Caldwell. “By comparison, the Senate confirmed only 55 circuit judges in all eight years of Barack Obama’s presidency.”
*There’s the “web of anti-abortion restrictions” which pro-abortionists are furiously litigating to overturn. Pielko understands that the more judges who are confirmed that understand there are three branches of government and that their full-time job is not to act like a “superlegislature,” the greater the likelihood that popular pro-life proposals will not only be enacted but upheld.
*Speaking of judges yet again, Pielko quotes from a dissent written by 5th Circuit Court Judge James Dennis in a decision that (for the moment) allowed Texas Gov. Greg Abbott’s executive order to stand.
This Circuit thus once again does not apply the applicable rules of law because of the subject matter of the case, and, equally troubling, ignores the words of its own ruling from less than two weeks ago. I again echo the words of a colleague in dissent in a case now before the United States Supreme Court: “It is apparent that when abortion comes on stage it shadows the role of settled judicial rules.”
How ironic. For decades, pro-lifers have railed against what the late Supreme Court Justice Antonin Scalia once called the “abortion distortion,” whereby “the Constitution and normal rules of law are bent to protect abortion as a super-right,” in the words of James Bopp, NRLC’s general counsel.
To be clear, if you read the majority opinion to which Judge Dennis dissented, it was Judge Dennis and the plaintiffs who ignored the “applicable rules of law” and wanted special treatment for abortionists:
Those errors [listed above in the opinion] led the district court to enter an overbroad TRO that exceeds its jurisdiction, reaches patently erroneous results, and usurps the state’s authority to craft emergency public health measures “during the escalating COVID-19 pandemic.”
Once again, the dissenting opinion [Judge Dennis] accuses the majority of treating abortion differently and once again it is wrong. At issue is whether abortion can be treated the same as other procedures under GA-09 [Gov. Abbott’s executive order]. It is the district court that treated abortion differently, issuing back-to-back TROs that did not follow the law.
And so it goes. Pieklo ends with the gloomy (for her) conclusion that “all this s_ _ t” (the “bad faith attacks on abortion rights”) will end—but only when there is a “ruling overturning Roe v. Wade entirely. And not one moment before then.”
We can only hope she is prophetic and her prophecy comes true soon.