By Dave Andrusko
Yesterday we wrote about a fascinating decision by a three judge panel of the 8th Circuit that while upholding a lower court decision invalidating two pro-life Arkansas laws, included two concurrences which actively and pointedly encouraged the Supreme Court to rethink its “viability” standard.
Pro-abortionists immediately—and correctly—picked up on what Judge Bobby Shepherd and Judge Ralph Erickson were doing. Although they upheld the reliably pro-abortion U.S. District Judge Kristine Baker’s decision, they were moving in a different direction by building on a brilliant concurrence from a prior Supreme Court decision written by Clarence Thomas.
Justice Thomas illuminated how abortion and eugenics were joined at the hip in the early days and continue to be linked today. And that it is only getting worse:
Technological advances have only heightened the eugenic potential for abortion, as abortion can now be used to eliminate children with unwanted characteristics, such as a particular sex or disability.
This brings us to a critique written for Slate by Mark Joseph Stern, whose headline is incorporated into my headline.
What is his critique? It’s many-fold, beginning with the 2017 Senate confirmation vote of 95–1 which is “the most votes of any of Trump’s appeals court nominees.”
And, of course, that Judges Shepherd and Erickson were accusing women who aborted because of a prenatal diagnosis of Down syndrome of “seeking to systematically eliminate those with the condition from the face of the planet,” which is a nice rhetorical flourish but not what either judge was saying (nor was Justice Thomas).
The real burr under his saddle is something that has been around for a long, long time in Supreme Court decisions and which is too easily overlooked. It’s what Judge Erickson describes as “the state’s interest in nascent life.”
In this paragraph he conjoins opposition to eugenic abortions with a critique of viability:
While the state’s interest in nascent life has been recognized to give way to the right of a woman to be free from “unduly burdensome interference with her freedom to decide whether to terminate her pregnancy” id. at 874 (quoting Maher v. Roe, 432 U.S. 464, 473–74(1977)), it is apparent that the right is not, and should not be, absolute. By focusing on viability alone, the Court fails to consider circumstances that strike at the core of humanity and pose such a significant threat that the State of Arkansas might rightfully place that threat above the right of a woman to choose to terminate a pregnancy.
The right to “be free from ‘unduly burdensome interference with her freedom to decide whether to terminate her pregnancy’” is “not, and should not, be absolute.” That’s not what the Mark Joseph Sterns of this world want to hear.
They want abortion on demand, for any reason or no reason, through the end of pregnancy, paid for by the taxpayer. If a baby survives an abortion, abortion apologists are absolutely unwilling to require that this born human being receive the same medical treatment any other baby born at the same gestational age would receive. “Comfort care” at most.
One other thought. Lower court judges “lobby” the Supreme Court all the time, sometimes directly, more often indirectly. But either way, there is nothing unusual or inappropriate about a federal judge/judges telling the Supreme Court where the justices have gone wrong and/or why time and practice has rendered a prior decision obsolete.
The irony is, of course, staggering. We are forever being told we wish to “go back to the past.”
But it is pro-abortionists who cling to the past.
They are the ones who insist that we have learned nothing about unborn children in the past 50 years. Pro-abortionists, not pro-lifers, say we should apply discriminatory attitudes to babies who supposedly are the “wrong” age or sex or who are insufficient “perfect.”
Stern responded so vigorously because he knows the truth. Aborting babies on such patently unjust grounds is a huge chink in the Abortion Industry’s armor.