The stunning decision of the Supreme Court on June 27 in Whole Woman’s Health v. Hellerstedt exemplifies the serious, compromised condition of the federal judiciary. In Whole Woman’s Health, the Court struck down common-sense health regulations of abortion clinics.
Sadly, women, their families and society are seriously endangered by the ideologically extreme Hellerstedt ruling. Likewise, principles of democratic self-government have been severely wounded.
The regulations challenged in Whole Woman’s Health can be traced to a scandal in Philadelphia where a sleazy abortion doctor, Kermit Gosnell, operated a filthy abortion clinic that gained the reputation as a “house of horrors.” He reported snipped babies spines, and at least one woman patient of his abortion practice died.
In 2013, he was found guilty of murdering three babies born alive in his abortion clinic. He also was found guilty of involuntary manslaughter in the overdose death of an adult patient. He is now in prison.
After the Gosnell abortion scandal became public Texas and several other states enacted health and safety regulations to protect women from exploitation by such dangerous abortion businesses. Of course, that’s what legislatures are supposed to do – to enact laws to protect persons from potential harms such as those revealed in the Gosnell abortion scandal.
Sadly, regulations of abortion are radioactive materials in federal courts. The courts are extremely biased in favor of unrestricted abortion-on-demand, and are very biased against individuals, groups and laws that attempt to impose any restrictions on abortion.
Advocates of pro-life principles are just as unpopular, just as marginalized, and just as unsuccessful in federal courts today (and have been for about the last half-century), as advocates of racial equality and civil rights were for about the previous century.
Lyle Denniston correctly described the effect of the Supreme Court ruling in Whole Woman’s Health v. Hellerstedt when he wrote: “Abortion rights reemerge strongly.” The Court’s decision on June 27th is the most extreme pro-abortion ruling of the Supreme Court in a quarter-century.
The Whole Woman’s Health decision overturned decades of small, carefully-crafted pro-life inspired regulations of abortion, and re-affirmed the principle that there is a nearly absolute right to unrestricted abortions. It has killed the “incremental” approach to trying to regulate or restrict abortion-on-demand.
The uncompromising Whole Woman’s Health decision sends a clear message to the pro-life community in America. It says: you are second-class, second-rate citizens; you do not enjoy equal civil rights to enact laws and influence policies relating to abortions. Playing by the rules may work for others but it will not work for you. You ultimately will lose in federal court in every significant case, on every significant issue involving abortion.
As one pro-life organization put it:
“The Supreme Court is now the Supreme Medical Board, setting its own standards for patient care in the United States. This decision is an outrageous usurpation of legislative power and it only underscores the critical importance of electing a President who will nominate -- and Senators who will confirm -- justices to the Supreme Court who will adjudicate, not write the law.”
It has been forty-three (43) years since the Supreme Court decided Roe v. Wade and Doe v. Bolton in 1973. Since then, there have been forty (40) major Supreme Court decisions about abortion, plus nearly a dozen additional Supreme Court rulings on other issues relating to abortion cases.
But after nearly a half-century, there are very few restrictions of abortion clinics or practices. There are more restrictions of hair salons and cosmetology services than there are of abortion practices.
The Daily Signal reported:
“Nationally, an estimated ‘26,500 women experienced complications and approximately 3,180 required hospitalization in 2011’ for first trimester abortions alone.
“In addition, as Federal Judge Edith Jones noted in her opinion for the U.S. Court of Appeals for the Fifth Circuit on this case: ‘Planned Parenthood conceded that at least 210 women in Texas annually must be hospitalized after seeking an abortion.’
“One group estimates from court records that the number is closer to 1,000 [injured Texas women].”
Also, it is “reported that ‘just 45 inspections were conducted at all 25 [NYC abortion] facilities during the 12-year period. By comparison, city restaurants and eateries get inspected annually and then graded, while a new law requires tanning salons to undergo inspection (and resultant licensure, which costs money, of course) at least every other year.’”
Of course, pro-life citizens have no other option than to continue to work within the system, to pass laws to protect life and lives – and watch them be struck down. But we need not do so silently, passively. We must speak up and speak out and write often to express our dissatisfaction, disgust, outrage, and non-acceptance of the corrupt abortion rulings and the corrupt judiciary that issues them.
The abortion rulings and judicial patterns of the past forty-three years are clear indicators that something is wrong, something is broken in our federal judicial system.
The Founders of the American experiment created an independent judiciary. After forty-three years of almost unbroken pro-abortion judicial rulings, it is clear that the federal judiciary is not really independent when it comes to abortion cases and abortion issues. It is a captive agency. The question is – who owns the Supreme Court?
Lynn D. Wardle is the Bruce C. Hafen Professor of Law at Brigham Young University. He is author or editor of numerous books and law review articles mostly about family, biomedical ethics and conflict of laws policy issues. His publications present only his personal (not institutional) views.