At the heart of the Left’s culture war is the right to invent one’s own Constitution, of standing, of the universe, and of the value of innocent human lives.
Five Supreme Court justices on Monday struck down a Louisiana regulation of abortion businesses as unconstitutional, without really citing the Constitution at all. Instead, the ruling in June Medical Services this morning leans on a fictional right to abortion, and an imagined “undue burden” standard invented by the judicial abominations that were Roe v. Wade and Planned Parenthood v. Casey.
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Chief Justice John Roberts concurred with the liberals that, because the court got this question so horrifically wrong twice, it must get it horrifically wrong a third time.
The June Medical decision never quotes the Constitution, but it repeatedly quotes the 1992 ruling Planned Parenthood v. Casey. Most concretely, the majority relied on the Casey line, “a statute which, while furthering [a] valid state interest has the effect of placing a substantial obstacle in the path of a woman’s choice cannot be considered a permissible means of serving its legitimate ends.”
But that principle is found nowhere in the Constitution. It was simply the invention of the majority in Casey, a ridiculous decision that began with a nihilistic line, “At the heart of liberty is the right to define one’s own concept of existence, of meaning, of the universe, and of the mystery of human life.” Translated: liberty means you get to decide for yourself which lives matter.
Read John Roberts’ concurrence, and the absence of the Constitution is glaring. He writes about “Casey’s governing standard,” and repeatedly uses the phrase “under Casey.” It’s fitting. We may be governed by the U.S. Constitution in many regards, but when it comes to abortion, we live under Planned Parenthood v. Casey.
Casey was a strained adaptation of Roe v. Wade, which, in an infamous act of bloody lawlessness, invented a right to abortion. Pro-choice legal scholars admit that Roe, which found a right to abort a child emanating from the penumbras of the Constitution, was hideous as a legal decision.
“Behind its own verbal smokescreen,” liberal legal scholar Laurence Tribe wrote, “the substantive judgment on which it rests is nowhere to be found.”
“As a matter of constitutional interpretation and judicial method,” wrote pro-choice Ed Lazarus, a former clerk for Harry Blackmun, “ Roe borders on the indefensible.”
Roe “is not constitutional law and gives almost no sense of an obligation to try to be,” wrote liberal constitutional law professor John Hart Ely of Yale, Harvard, and Stanford Law Schools.
The only sane voice in the June Medical decision is that of Clarence Thomas, writing in dissent: “The Constitution does not constrain the States’ ability to regulate or even prohibit abortion.”
That is true. Liberal judges don’t even try to argue otherwise. They simply lean on Casey, which leans on Roe, which they all know is a lie. As Thomas put it, “Roe’s reasoning is utterly deficient — in fact, not a single Justice today attempts to defend it.”
The single constitutional citation in the majority’s opinion is to section 1 of the Fourteenth Amendment. Thomas lays out clearly the error here. “The idea that the Framers of the Fourteenth Amendment understood the Due Process Clause to protect a right to abortion is farcical.”
Yet on this farcical foundation, the Supreme Court has continued — to this day — to build a bulwark in defense of abortion.
