I was appalled when I saw a picture of a biological boy maintaining a stranglehold over a girl contestant in a school wrestling match. This is the insanity that results from letting boys who self-identify as girls take over girls’ sports
I’m not the only one who is struck by the basic unfairness of the situation. In June, three female high school athletes in Connecticut filed a complaint with the U.S. Department of Education for Civil Rights alleging that the Connecticut Interscholastic Athletic Conference unlawfully discriminated against girls when it allowed transgenders to compete in girls’ sports. The girls argue that the school policy violates Title IX, a federal law passed in 1972 to protect equal athletic opportunities for women and girls. The Obama administration opened the door to allowing boys in girls’ sports when it usurped legislative power and administratively puffed up the definition of ‘sex’ in Title IX to include ‘gender’, thus protecting transgenders against discrimination. So, does protection for transgenders trump protection for female athletes for whom Title IX was written? We’re going to find out. This last week, the Department of Education granted the request to investigate the girls’ allegations of illegal discrimination against them. The case will go forward.
Title IX states that, “No person in the United States shall, on the basis of sex, be excluded from participation in, be denied the benefits of, or be subjected to discrimination under any educational program or activity receiving Federal financial assistance.” Title IX is an example of how the 14th Amendment’s Equal Protection clause has been interpreted and applied over time.
The complaint describes how one boy, who didn’t do so well in male track events, all of a sudden started competing in girls’ events. That student now holds 10 records that used to belong to 10 different girls. The girls complain, and rightly so, that the inclusion of boys in their events has deprived the girls, not only of recognition and publicity, but of college recruiting and scholarship opportunities. This is yet another example of how liberal policies are not just wrong, they hurt people. It’s also an example of the pretzel logic of the Left where you can complain all day about the evil patriarchy, then turn around and make sure the patriarchy squelches any real chance girl athletes have for advancement. Can it get any crazier than this?
The Left is eating up an award winning Broadway play - “What the Constitution Means to Me” - that is about to tour the country. The playwright, Heidi Schreck, has discovered, like the producers of the play Angels in America and many other artists before her, that the ticket to success in the arts world is to tilt to the Left and serve up exactly what Progressives want to hear.
As a teenager, Heidi Schreck loved the Constitution and paid for her entire college education by going around the country giving speeches on it. Her play “What the Constitution Means to Me” features her as an adult revisiting her teenage love of the Constitution and finding fault in the document now that she’s older. Her current views are quite far to the Left. She believes that transgenders have a basic human right to serve in the military, when the fact of the matter is NO ONE has a right to serve in the military. It’s a privilege reserved for those who qualify. She’s in favor of the Climate Kids lawsuit which seeks to establish a Constitutional right to a pristine environment, even though it would mean that the entire U.S. economy would be run by one federal judge out of a courtroom in Oregon, which is what the Climate Kids are asking for. She believes that our democracy is a lie and the United States is sliding into tyranny under President Trump, even though he has not shut down any newspapers or thrown any editors in jail. Schreck suffers from full-blown Trump Derangement Syndrome.
The adult Heidi Schreck has developed two problems with the Constitution, both straight out of the Left’s playbook - first, that the Constitution fails to achieve diversity and inclusiveness and, second, that it fails to protect people against the slings and arrows of outrageous fortune. With regard to diversity, Schreck says the Constitution only protects “the people who are already protected” - whatever that means - and is working perfectly as intended - to protect rich, white men. Everyone else is pushed to the margins of the Constitution, she says. We all belong in the Preamble, she declares. Never mind that the Preamble starts with “We the People”, not “We the Rich, White Men”. It’s an “appalling” document, she says, because it views blacks as property, not human beings. Never mind that the Constitution set things up to eventually get rid of slavery. [E.g., Slave Trade Clause - Article I Section 9].
The original Constitution may not look so good when viewed through the narrow prism of today’s identity politics, but this ignores the 13th, 14th, 15th, and 19th Amendments - getting rid of slavery, ushering in Equal Protection, and guaranteeing the right to vote regardless of race or biological sex. Why would you throw out a document that has shown it can bring the blessings of liberty to more and more people over time, as our Constitution has? The worn-out observation that the original Constitution included some people but excluded others is true, but misleading.
Moreover, judging the Constitution by the standards of the Left’s diversity narrative du jour ignores all the things that are wrong with the narrative itself. Here are just three: First, it’s way out of balance. It crowds out other important values that the Constitution does embody like limited government, popular sovereignty, personal freedom, and individual rights. Get people all hepped up on diversity theory to the exclusion of all other considerations and, before you know it, they’re in Kentucky teens’ faces at the Lincoln Memorial [Nicholas Sandmann] and committing hate crime hoaxes in Chicago [Jussie Smollett]. Second, diversity policies hurt people. Just ask the excellent Asian students who can’t get into Harvard because of affirmative action policies favoring other groups. Third, the diversity narrative is leading to absurd results, like the resegregation of college dorms and the self-identify phenomenon where you can wake up one morning and proclaim you are something you are not and everyone else just has to bow down to it. Schreck and her play say nothing about any of these complications.
But there’s a second, more fundamental flaw in Schreck’s thinking. She criticizes the Constitution for failing to protect people, like her grandmother who was the victim of an abusive childhood. “I believe we need a brand-new positive rights document...,” she says during the play. The Constitution contains mostly negative rights that keep the government from doing bad things to you, like shutting you up or searching your house without a warrant. Positive rights include various forms of economic security, such as the rights to housing, education, and a job in FDR’s Second Bill of Rights. But positive rights also include the right to police protection, thus her beef with Justice Scalia’s opinion in a 2005 case [Castle Rock v. Gonzalez] declining to find a due process right to police enforcement of a restraining order against a father who ended up taking and murdering his three children. With positive rights, the three children and Schreck’s grandmother would have been protected, Schreck evidently believes. Forget that that police don’t always get there in time and all the other real-world complications to her rose-colored view.
The impulse behind all these positive rights is to have the government put a soft pillow under absolutely everybody for absolutely everything. Security in all things. As Schreck puts it, "Maybe instead, we could start thinking of the Constitution as a kind of ur-mother, whose job it is to actively look out for all of us, especially the most vulnerable among us." That’s the pioneer spirit.
There’s a lot of pseudo-science coming from the Left purporting to show that people on the Right are a bunch of fraidy cats and their brains are wired differently to seek security in all things. [Language of Terror by Kendall, et al.] Never mind that Social Security was a left-wing invention. But here we see the impulse for absolute security on full display from the new darling of the Left, which gets to the heart of the matter. As told to me by a former Leftist, the Left honestly believes it can bring about heaven on earth and the end of all human suffering. They believe they alone possess the secret knowledge to fundamentally transform human nature and bring about this earthly paradise. The rest of us are too stupid to figure it out. Well, I’m sorry, but that’s a bunch of malarkey. It’s a pipedream, it’s not ever gonna happen. Which makes Heidi Schreck’s play a nice bedtime story but nothing of substance that goes beyond the realm of fantasy.
So there you have it: a complete mirage from a mixed-up playwright. One minute she’s calling the Constitution “magical” and a work of “genius”, and saying it’s “appalling” the next. One minute she’s expressing her fundamental faith in the Constitution because it gives us what we need to make the country better, then calls for “a brand-new positive rights document” the next. Just because she’s conflicted and mixed up about the magnificence of our country’s founding document doesn’t mean we have to be.
Last Monday, the 9th Circuit Court of Appeals issued an interim ruling against the Trump administration’s policy of indefinite detention of certain asylum-seekers pending their deportation hearings. The court ruled that the government failed to make “a persuasive showing that it will suffer irreparable harm if it is required to provide bond hearings pending the outcome of this appeal in the same way it had done for several years.” Getting to the heart of the matter, the court went on to say that the government is not likely to succeed on the merits of its “underlying argument that the government may indefinitely detain the plaintiffs without affording bond hearings at all.” Bottom line: the affected class of asylum seekers will have the opportunity to post bail while an appeal on the merits goes forward.
There is a long history of revulsion for indefinite detention going back at least as far as the English Habeas Corpus Act of 1679 which the noted legal authority Blackstone called the “second magna charta, and stable bulwark of our liberties.” The late Justice Scalia recounted this history in a 2004 dissent, concluding, “The very core of liberty secured by our Anglo-Saxon system of separated powers has been freedom from indefinite imprisonment at the will of the Executive.”
Habeas corpus is found in our own Constitution - Article I, Section 9, Clause 2. We also have the 8th Amendment which states “excessive bail shall not be required.” All of this applies to noncitizens by virtue of Due Process which, under the 5th Amendment, is afforded to all “persons”, not just citizens.
Abraham Lincoln is reviled by some for suspending the writ of habeas corpus, rounding up 14,000 political prisoners, shutting down 300 newspapers, and throwing editors in jail. Lincoln also ignored the Supreme Court which ruled he did not have the authority under the circumstances to suspend habeas corpus. At least he had the excuse there was a Civil War on.
FDR placed Americans of Japanese descent in internment camps in World War II. On that occasion, the Supreme Court upheld the action in the Korematsu case, which is widely recognized as one of the worst decisions the Court has ever made.
In recent times, the U.S. has used indefinite detention in the War on Terror, notably at Guantanamo. Efforts to amend the NDAA to prohibit indefinite detention of U.S. citizens failed in Congress, but the ACLU and others object strongly to the practice. To sum it all up, we have had some instances of indefinite detention in our history, but it’s still strongly disfavored.
We’ll have to wait and see what the 9th Circuit does on the merits when the indefinite detention question is squarely before the court. The court granted the government’s request to expedite the appeal, so we should have an appellate-level ruling sooner rather than later.
Observers were pretty amazed earlier this month when the 9th Circuit, of all places, handed President Trump a win in a sanctuary city case. I got curious because previous cases made it clear the Trump administration could not take away funding, or place extra conditions on federal grant money, or commandeer state employees into enforcing federal immigration laws.
It turns out, according to a 9th Circuit three-judge panel, all the Trump administration had to do was change the grant process to award bonus points to cities focusing on illegal immigration and promising to cooperate with federal immigration authorities. In contrast, Los Angeles - whose case was before the 9th Circuit panel - chose “building trust and respect” as its focus area and declined to cooperate with federal immigration authorities in such matters as turning over fugitives for deportation.
The 9th Circuit panel noted that no federal funds were withdrawn from Los Angeles, nor was Los Angeles automatically barred from receiving federal policing grants because of sanctuary city and state policies. The administration did not add extra conditions to the grant; it merely prioritized money to locales that would serve the administration’s policies better, something which L.A. and California had been free to do. Thus, the administration’s bonus point system complied with all the requirements that had been built up over time in case law interpreting the Spending Clause of the U.S. Constitution [Article I, Section 8, Clause 1].
The panel went on to say that merely awarding additional points to grant applications that emphasize lawful purposes did not amount to coercion. No city or state laws were overturned in the application process. There was no coercion and no Tenth Amendment violation, the panel said. The panel concluded by saying the administration had acted within its statutory authority, that Congress had been silent on the precise question presented, and that the administration had acted reasonably - not arbitrarily or capriciously - in prioritizing recipients of federal grants closer in line with administration policies.
Los Angeles received over $3 million from the police grant program at issue the year before the case arose. The latest report I could find indicated the city is reviewing the panel’s decision. Conceivably, Los Angeles could appeal to the full 9th Circuit or to the Supreme Court. Stay tuned.
Unless you’ve been living in a cave the last six months, you undoubtedly have seen story after story about how the authoritarian Left is trying to silence conservatives and other non-Left voices. Whether it’s breaking down Tucker Carlson’s front door or attacking journalist Andy Ngo in Portland, Oregon, it’s clear we’ve entered a new phase. Now is the time for all good people to fight back, or watch the Left destroy our First Amendment.
In January, I gave you lots of examples of how the Left is assaulting free expression in public, on campus, and online. More recently, I’ve been tracking stories about how people are fighting back. Here are some of the more interesting ways people are taking a stand:
Our friend Senator Ted Cruz will hold hearings Tuesday July 16th on Google’s anticonservative bias. Dennis Prager, who was kicked off of YouTube - owned by Google - will testify. This follows previous hearings about anticonservative bias at Twitter and Facebook. The tech companies are probably not free speech zones, which one may reasonably conclude after the Supreme Court declined to apply the First Amendment to public access cable television earlier this year. So going after the tech giants is in the interest of free expression overall, not free speech rights under the First Amendment.
But speaking of Facebook, Laura Loomer sued Facebook for $3 billion for defamation for calling her a “dangerous individual” and a domestic terrorist. Other recent free expression-related litigation includes #WalkAway founder Brandon Straka suing a New York City gay community center for canceling his event and the state of Texas suing San Antonio for denying an airport concession to Chick-fil-A. The Chick-fil-A controversy also resulted in a new state law passed by the legislature and signed by the Governor to rectify the situation, as well as an investigation by the U.S. Department of Transportation.
Elsewhere at the state level, 28 states now have campus free speech laws or bills and Kentucky has a new law allowing Bible classes to be taught in public schools. A pending resolution in the Pennsylvania legislature condemning a state lawmaker for harassing anti-abortion protesters now has 40 co-sponsors.
On campus, an incoming freshman tore up her acceptance letter from NYU for its anti-Semitism. Her great-grandfather had founded the music department there.
Playwright and activist Phelim McAleer fought back by finding a new venue after a theater in Washington, D.C. cancelled a contract allowing him to stage his play ‘FBI Lovebirds’ about Peter Strzok and Lisa Page. The play was rescheduled in the Ronald Reagan building. It is based on Strzok and Page’s unintentionally funny texts. The show went on and a good time was had by all.
Shareholder resolutions protesting censorship or seeking ideological diversity on corporate boards were introduced at Google, Facebook, Amazon, Apple and Twitter. Shareholders also went after JPMorgan Chase for debanking conservatives.
What can you do? Here are two easy-peasy action items that will take you a grand total of five minutes. First, sign the White House petition to designate Antifa a domestic terrorist group. The petition was inspired by Antifa’s attack on Andy Ngo in Portland. Second, sign the open letter to the U.S. Army War College to reverse its decision to disinvite a speaker after CAIR - the Council on American Islamic Relations - made trouble.
Finally, there’s the story of the 10-year-old girl in Britain who was suspended from school after asking to be excused from LGBT lessons during Pride Month. She said the lessons were confusing her classmates who are now calling themselves bisexual and trans. If a 10-year-old girl can fight back against the authoritarian Left and its insanity, so can we.
My Tea Party wrote an Instant Graduate Degree in Political Science early on in the Tea Party movement and refined it over the next several years. It’s the American Idea on one page. We wrote it to celebrate the 4th of July - Independence Day - every year, and I’d like to read it to you now. Please distribute it far and wide:
Too many Americans have deliberately been cut off from their heritage and no longer understand the set of ideas the country started with, or why the Founders' ideals remain important today. Understand these ideas and you will know more about your country than many politicians or college graduates. These ideas are simple to grasp, yet more powerful than the mightiest army. America is a special place. It’s the only country in all of human history founded on an idea – individual liberty. The Declaration of Independence states that you have the unalienable rights to life, liberty, and the pursuit of happiness. These rights are not something the government gives you. As an American, you are born with these rights. Some say these rights come from nature, and call them ‘natural rights’. Others say they come from God, and call them ‘God-given rights’. The point is, YOUR RIGHTS DON’T COME FROM GOVERNMENT, or even the Constitution. What the government cannot give, it cannot take away. This is the true meaning of the American Revolution, and it was truly astounding. For the first time ever, a government was instituted to protect the rights of the people, not the privileged few or those who would set themselves up as your rulers or benefactors. THE PURPOSE OF GOVERNMENT IS TO PROTECT YOUR RIGHTS. In fact, the Founders instituted a system of limited government so that your rights could never be taken away from you. Not only do your rights NOT come from government, the truth is that government’s rights come from US. In America, we live under the revolutionary idea that WE THE PEOPLE ARE SOVEREIGN. The federal government has only the enumerated powers expressly set forth in the Constitution. It has only the powers We the People give it. Under the 9th and 10th Amendments to the Constitution, all remaining rights and powers belong to We The People and to the states, not to the bureaucrats or politicians in Washington. The Founders were very far-sighted in instituting limited government. They knew that every now and then a charismatic demagogue would come along singing a siren song about how much the government could do for you if only you would surrender your liberty. The Founders knew that somebody would always want to be King George and that the inevitable tendency of government is to grow its power and expand its reach over the people. The system of checks and balances the Founders created will, if faithfully observed, forever prevent a tyrant or tyrannical government from emerging and ruling the land by personal whim or decree. The Founders' ideas are in accord with human nature and have stood the test of time. They are superior to all political theories that went before (might makes right, let them eat cake, the divine right of kings), and to every political ideology that has come along since (various forms of collectivism which destroy individual liberty and turn the clock back to when We the People were subjects, not sovereigns). Individual liberty is the only political idea that is humane, compassionate, and sustainable in the long run. So, as you celebrate Independence Day, remember the true meaning of this occasion and why we in America truly have cause for celebration. We the People are free – we live in a free country where the people are sovereign - and, sadly, that has not been the case for most human beings who have ever walked the earth. Congratulations, you have just graduated. Now go in liberty and cherish every minute of it. Use your freedom wisely; it's a great gift. And don't let anyone denigrate the magnificence of the Founders' ideals, confuse you with sophistry, or take away your liberty without a fight. It's your heritage and your foundation as an American living in this special place we are so incredibly fortunate to call home.
Conservatives seem to like the result in the Peace Cross case handed down by the Supreme Court this past week but the case doesn’t really say very much about what will happen in future cases involving memorials and displays.
The Court decided 7-2 that a 40-foot World War I memorial in Maryland in the shape of a cross is not an unconstitutional ‘establishment of religion’ in violation of the First Amendment. The memorial can stay on government land and be maintained with taxpayer money, under the Supreme Court’s decision. [American Legion v. American Humanist Association]
The result is clear, but the Court’s reasoning is a complete mess. The seven Justices in the majority split five different ways. Justices Alito, Roberts, Breyer, and Kavanaugh suggested the 3-part Lemon test from the 1970s [Lemon v. Kurtzman] does not apply to cases involving “longstanding monuments, symbols, and practices.” The Peace Cross is 95 years old. Writing for this group, Justice Alito, perhaps taking a cue from former Justice Anthony Kennedy in the Masterpiece Cakeshop case last year, suggested that “A government that roams the land, tearing down monuments with religious symbolism and scrubbing away any reference to the divine will strike many as aggressively hostile to religion.”
Justices Breyer and Kagan wrote in a separate opinion in the Peace Cross case “there is no single formula for resolving Establishment Clause challenges.” Justice Kavanaugh, writing by himself, suggested a new 4-part test to replace the old Lemon test. Justice Kagan, in another opinion, wrote in favor of two parts of the Lemon test, but said the other part was “problematic”. Justice Gorsuch wrote that the Lemon test is indefensible and that merely being offended by a memorial or display should not be enough to get someone in the courthouse door to challenge it. Justice Thomas wrote he would overrule Lemon outright because it “has no basis in the original meaning of the Constitution.”
So there you have it, whatever it is. The results apply to exactly one case and no new guidance was given for future cases.
The root of the problem, as I have suggested before, is that the Supreme Court in effect took the Establishment Clause out of the Constitution and replaced it with its own made-up ‘endorsement clause’. Under Supreme Court precedent, government can violate the Establishment Clause just by favoring one religion over another, appearing to approve or disapprove of a particular religion, making members of other religions feel unwelcome, or otherwise ‘endorsing’ a religion. Going this route doomed the Court to having to confront an endless stream of cases about memorials and displays, each of which has to be decided on fine shadings of fact with no real guidance for the next case.
This is not at all what James Madison had in mind when contemplating religious liberty. He saw real religious persecution in his own colony of Virginia, with the government setting up an official state religion and throwing preachers with contrary views in jail. The Establishment Clause, in Madison’s view, was meant to protect “individual liberty of conscience”. Nativity scenes and war memorials in the shape of a cross would not have troubled Madison because they don’t even come close to establishing an official state religion like the one in colonial Virginia.
Justices Thomas and Gorsuch wrote in their concurrences in the Peace Cross case that the Supreme Court should return to the original public meaning of the Establishment Clause, which, as Madison said, protects liberty of conscience and prevents official state religions that compel belief and support.
It takes a long time for Supreme Court jurisprudence to change. It’s plausible that the Thomas-Gorsuch school of thought will eventually carry the day, if only because the Supreme Court has made such a complete mess of things with its ‘endorsement’ approach and does not seem to be able to extricate itself from its own intricacies any other way. Three generations of imbecile decisions is enough. It’s time to throw in the towel and restore the Establishment Clause to its original meaning.
Some government officials still haven’t gotten the message from the revolt that followed the Supreme Court’s overreaching Kelo eminent domain decision. Kelo, you may recall, puffed up eminent domain to allow governments to take private property for public benefit and economic development, not just for public use like a road. So, in New London, Connecticut, private homes were taken and transferred to another private owner for a medical research lab that was never built, all for the sake of economic development. After Kelo, 45 states enacted some kind of reform measure to rein in the use of eminent domain for economic purposes.
Rapacious Baltimore didn’t get the memo, however. In March, it filed a lawsuit to condemn the Preakness Triple Crown horse race - not just the Pimlico race track where the race is run, but the horse race itself.
Now comes the federal government which wants to get away without paying a dime for an airport terminal in Texas that was built and maintained with private investor funds and a lower court said was worth more than $133 million. The facts in the Love Terminal case [Love Terminal Partners v. United States] are convoluted, but the important point for present purposes is that the government says the terminal, now destroyed, was worthless because it had no tenants and was not earning a positive cash flow. Therefore, the government says - and the appeals court in this case agreed - no just compensation for the exercise of eminent domain is due.
However, by that logic, if the government decides to take any church or synagogue in the land - or any idle farm in the country waiting for a new owner to come work it - the government can get away with seizing the property and refusing to pay just compensation when these things clearly have value. Places of worship may not ever turn a profit, but they clearly have monetary value. Commercial assets may not be making a profit at the time the government decides to seize them, but they still have value. Doesn’t getting them for free sound too good to be true? More importantly, wouldn’t that be exactly the wrong signal to send to what is supposed to be limited government whose job it is to protect our rights, not line its own pockets at our expense?
There was a perfectly good doctrine in eminent domain law in use for decades - a property is worth what a willing buyer would pay in cash to a willing seller for it. There is no good reason I can see to replace it with a new doctrine that essentially says ‘we can take your property for free if it’s not earning anything at the moment, even if we’re the ones who caused your revenue to dry up.’
The Supreme Court has not yet decided whether to take the case, but it should. There’s a lot at stake here.
Kamala Harris made news this past week by proposing that state laws restricting abortions be subject to preclearance by the U.S. Justice Department. The proposal is modeled after the preclearance provisions of the Voting Rights Act of 1965 which forced state and counties with a history of discrimination to get preclearance from the federal government to make changes in their election procedures. The Feds blocked 86 measures in several states under voting rights preclearance. Preclearance for abortion restrictions could have just as big an impact - abortion restrictions have been enacted in ten states so far this year.
In 2013, the Supreme Court knocked down part of the voting rights preclearance scheme. The Court found that the formula used to determine whether states were still discriminating against minority voters were out of date and the Justice Department was acting like nothing had changed in the last 50 years when it clearly had. As applied, preclearance had become unconstitutional, violating the Tenth Amendment. [Shelby County v. Holder, 2013] “The Tenth Amendment reserves to the States all powers not specifically granted to the Federal Government, including ‘the power to regulate elections.’” Id. The Court found that the federal government could not disrupt the “equal sovereignty” of the states - that is, treat them differently from each other - on the basis of out-of-date information. [more here]
But here’s the rub: the Supreme Court did not say preclearance itself is unconstitutional or against the Tenth Amendment. Instead, it said Congress can mandate preclearance under “exceptional conditions”. Literacy tests and poll taxes were the “exceptional conditions” justifying preclearance in the voting rights context.
The analysis in the abortion context is different, and is of no comfort to friends of limited government. States have the power to regulate elections, but the Supreme Court declared a federal fundamental right to abortion in the Roe v. Wade case. The Court federalized the abortion issue and didn’t leave much in the way of state power on the issue. States can try, even citing health and safety concerns, but state restrictions on abortion can get knocked down if they are deemed an “undue burden” on the federal fundamental right to abortion. This has been the basic set-up since the Planned Parenthood v. Casey decision in 1992.
We may not like it but, because of the way constitutional law has gone in this country, a President Kamala Harris would have at least as strong a case in asking Congress to enact preclearance in the abortion context as there was in the voting rights context. She can cite all the recent attempts to restrict abortions, claim that the heartbeat and other types of bills are “undue burdens” on the right to abortions, and say to Congress “exceptional conditions” exist to justify preclearance and require affected states to come begging to Washington before their legislatures can even take up any abortion bills at all. She’s not crazy, and that’s a problem for friends of the Tenth Amendment and limited government.
Alabama’s Governor signed into law a bill to ban most abortions in the state. The law is intended as a direct challenge to the Supreme Court’s 1973 Roe v. Wade decision extending the fundamental right to privacy under the 14th Amendment Due Process clause to include a right to abortion. Alabama’s law does not take effect for 6 months but, already, at least one Alabama doctor has vowed to keep performing abortions when the law goes into effect.
Alabama joins other states that have recently passed restrictions on abortion. Heartbeat bills were passed in Georgia, Kentucky, Mississippi, and Ohio. In addition, Missouri’s Governor is expected to sign a heartbeat bill passed by the legislature this past week.
Meanwhile, observers reading the tea leaves in a different kind of case this past week said liberal Justice Breyer was sounding the alarm about the Supreme Court overturning Roe v. Wade. The case had to do with where states can be sued but the opinion overruled a 40-year-old precedent in the process. Breyer’s dissent concluded: “Today’s decision can only cause one to wonder which cases the Court will overrule next.” Overturning precedent is rare because of the judicial doctrine of ‘stare decisis’ which, in Latin, means ‘to stand by things decided’.
Will the Supreme Court overturn Roe v. Wade and uphold Alabama’s abortion ban? The appointments of Justices Kavanaugh and Gorsuch give pro-lifers hope. But it’s dangerous to make predictions, especially about the future. There were five votes on the Supreme Court to overturn Roe in 1992, but it didn’t happen. Instead, Justice Kennedy switched his vote and the Casey case has been used numerous times since to knock down state restrictions as ‘undue burdens’ on the right to abortion. Some say Chief Justice John Roberts is in the role of swing justice today and point out that he has never voted to strike down a state abortion restriction.
So it’s anybody’s guess what will happen if the issue does head back to the Supreme Court. The Court could uphold Roe, knock it down - sending the entire issue back to the states - or modify it as it did in the Casey case. That we are still fighting about abortion 40 years after Roe became the law of the land is testimony to the passion and endless inventiveness of pro-life activists who have been holding annual marches, praying outside of Planned Parenthood clinics, and producing a veritable blizzard of state and federal legislation - pain capable bills, dismemberment bills, heartbeat bills, and 44 attempts in the U.S. House at last count to stop infanticide. Other activists on the right would do well to study their methods and bring them to bear on other policy issues. Perhaps most importantly, pro-lifers did not quit in the face of long odds. They kept fighting. They’re an inspiration to anyone fighting the Left on other issues.