By Dave Andrusko
Yesterday, I promised to pick up on and expand what I preliminarily wrote about Linda Greenhouse’s “The Flood of Court Cases That Threaten Abortion” opinion piece which appeared in the New York Times.
And I will. But there has so much that has come up that supplements Greenhouse’s near-hysteria over the passage of pro-life legislation and the appointment of strict constructionists to the Supreme Court and the lower courts that first we need to briefly talk about them.
*One of the principal spurs to what a pro-abortionist called the pro-life “insurgence” was New York’s “Reproductive Health Act,” which garroted all state abortion laws. But two months after its passage, a poll taken by the Marist company found that the RHA’s abortion on demand outcome is wildly unpopular with New Yorkers.
Zelda Caldwell reports the survey
found that New Yorkers oppose abortion after 20 weeks by a margin of 75 percent to 20 percent, and two-thirds (66 percent) would limit abortion to the first trimester of pregnancy.
While 62% of those surveyed identified as pro-choice, the results of the poll showed strong opposition to late-term abortion, consistent with national polling. A Marist poll taken in January of this year found that 75% of Americans favor limiting abortion to at least the first three months of pregnancy.
“New Yorkers simply do not support laws that allow late-term abortions,” said Carl Anderson, CEO of the Knights of Columbus, the organization that sponsored the survey. “It is now clear that these radical policies are being pursued despite opposition by the majority of New Yorkers, and by a majority of those who identify as Democrats, Republicans and independents.”
*Meghan Keneally, of ABC News, writes “[M]ore than 250 bills restricting abortion have been filed in 41 states since the start of 2019, according to a new report issued by the Planned Parenthood Federation of America and Guttmacher Institute, a reproductive rights research group initially formed under Planned Parenthood that has been operating separately for years.
“While some legislators have been working to restrict abortion access since the landmark Roe v. Wade Supreme Court case that codified the right to abortion in 1973, the rate at which restrictive laws have been filed in recent years has picked up.”
To be clear Guttmacher, the abortion movement’s think-tank, habitually exaggerates the number of pro-life proposals. But the figure is in the ballpark and illustrates that pro-life momentum is real.
As the New York Times’ Linda Greenhouse explains in an article that should terrify anyone who cherishes reproductive rights, a veritable “insurrection” against abortion rights has developed in the federal judiciary, in conjunction with Republican-controlled state legislatures.
*Back to Greenhouse, who was for decades the New York Times’ Supreme Court reporter, and her “Flood of Court Cases That Threaten Abortion.”
Once it was a mere “tide,” Greenhouse laments, but Yowza. …
Greenhouse points to judges who clearly are not unsympathetic to pro-life laws but who felt constrained to reject them as incompatible with Roe v. Wade. She writes as if there was never pre-Roe abortion jurisprudence or that judges could (independent of which party selected them) find the reasoning behind Roe almost comically inept.
This judicial rebellion prompts Greenhouse to editorialize, “I’ve seen a lot in decades of paying close attention to decisions coming out of the federal appeals courts, but I can’t remember seeing such expressions of outright contempt for the Supreme Court.”
What can explain this? What else? “In this age of norm-collapse, something has been unleashed here.”
Really? Perhaps more and more lower court justices see that respect for the Constitution and a reluctance on the part of judges to write policy preferences into the law as good things.
She is right in her next sentence: “There’s more” in addition to legislation and fed-up lower court judges.
After grousing about still other judges who find Roe lacking, Greenhouse writes, “Of all the recent rulings, the decision that took me most by surprise and gives me the most concern was handed down two weeks ago by the United States Court of Appeals for the Sixth Circuit.”
We wrote about this. The full U.S. Court of Appeals for the Sixth Circuit upheld an Ohio law that made entities that perform or promote abortions, such as Planned Parenthood, ineligible to participate in six state-funded health programs.
Greenhouses express respect for a “thoughtful” Judge Sutton, who wrote the opinion in Planned Parenthood v. Hodges, but found the opinion “astonishing.”
No, it’s not. Judge Sutton made many crucial distinctions, here are three.
First, citing prior Supreme Court decisions, Judge Sutton wrote, “the affiliates do not have a due process right to perform abortions.” That right is held by the woman alone.
Second the Ohio law does “not violate a woman’s right to obtain an abortion. It does not condition a woman’s access to any of these public health programs on refusing to obtain an abortion,” he wrote.
“It makes these programs available to every woman, whether she seeks an abortion or not. …Nor, on this record, has there been any showing that the Ohio law will limit the number of clinics that offer abortions in the state.”
Third, again citing the principles established by prior Supreme Court decisions, Judge Sutton then went on to conclude
These principles establish the following line between what Ohio may do and what it may not do. It may choose not to fund a private organization’s health and education initiatives. Private organizations do not have a constitutional right to obtain governmental funding to support their activities. The State also may choose not to subsidize constitutionally protected activities. Just as it has no obligation to provide a platform for an individual’s free speech, say a Speaker’s Corner in downtown Columbus, it has no obligation to pay for a woman’s abortion. Case after case establishes that a government may refuse to subsidize abortion services. …Both the United States and Ohio have done exactly that, whether through the Hyde Amendment, or through Ohio Revised Code. (Internal citations omitted for clarity.)
In a word, Greenhouse and her likeminded pro-abortionists are crestfallen that a “tide” of pro-life legislation and judicial disenchantment with Roe has reached “flood” proportions.
We’ll be happy when it reaches tsunami proportions.