By every measurement, the recent Supreme Court decision in June Medical v. Russo, striking down a Louisiana law requiring that abortionists have hospital admitting privileges within a 30-mile radius of their facilities, was thin stuff. The margin was 5-4, and the deciding vote was provided by Chief Justice John Roberts. He had not only joined the dissent in a very similar case out of Texas four years earlier, but he went out of his way in this case to state that the previous dissent still represents his point of view.
So why the abrupt change of mind? Because the court majority, acting like a legislature, analyzed issues such as traveling distance to facilities and the proper assessment of physician skills and concluded that the district court had been justified in striking down the law despite its benefits to women’s health, which the Louisiana legislature had explicitly sought to achieve in enacting it.
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Arguments ensued among the justices, and in the press, about which legal test the court was using — and these arguments matter. Was the court retaining the “undue burden” test first devised in 1992 in the Planned Parenthood v. Casey decision to evaluate the constitutionality of abortion limitations and health standards, or was it substituting and applying the new balancing test trotted out in Whole Woman’s Health v. Hellerstedt (which struck down a similar Texas law in 2016)?
The core of the Casey test, exhausted into the fumes of Hellerstedt, is that the purported right to abortion now rests upon a “constitutional” basis that no lawmaker, much less one of the framers, would have proposed. Its essence is Justice Anthony Kennedy’s vaporous locution: the “woman’s liberty interest in defining her ‘own concept of existence, of meaning, of the universe, and of the mystery of human life.’”
The phrase covers both everything and nothing. Put another way, it is akin to astrology — not an inexact science but rather no science at all.
For advocates of the right to life, the way that Kennedy has led the court into a cul-de-sac offers great, if yet unrealized, hope. What decisions like June Medical underscore is that the court’s core abortion precedents rest on neither science nor law. In other words, they do not rest on reason.
At the Charlotte Lozier Institute, founded in 2011, we hold aloft the banner of “science and statistics for life.” But if that is our mission, of what value is it when the response of the courts is merely the weighing of “imponderable values”? The answer to that question recapitulates the reasons that the abortion decisions of decades past are doomed to die on the ash heap of history. Though she ultimately joined Justice Kennedy in the Casey ruling, Justice Sandra Day O’Connor observed correctly in a prior ruling that Roe v. Wade was on a collision course with itself. It made abortion legally all but untouchable, but it attached a constitutional right to the moving target of fetal viability.
Science now weighs in the balance even more heavily, as premature babies are surviving outside the womb, with active medical care, at 22 weeks. Prenatal surgeries are being performed even earlier than that, and ultrasound images are reminding every woman who sees them of the dramatic facts of life in the womb from the very beginning. Statistics are doing much the same work, as researchers, including those affiliated with us, are demonstrating the harm that abortion inflicts, that women are themselves victims of abortion and not using it to space their children, and that abortion even contributes to dangerous social disruption and demographic decline.
In short, science and statistics favor life, and the tenuous and retrograde judicial support for Roe has no answer, no argument grounded in science, statistics, or legal logic. The pro-abortion justices hold to Roe and Casey by a string of cosmic mystery, a weightless balancing test, and imponderable insights. The result is both bad law and cruel policy, destruction of the unborn and negligence of women.
Roe is falling, and the saddest part of the June Medical decision is that Chief Justice Roberts seems to see its demise but chooses not to aid it. Not quite at the half-century mark for Roe, the game is still afoot.
Charles A. “Chuck” Donovan is president of Charlotte Lozier Institute.
