Misguided ‘Pro-Life’ Attack on Trump Supreme Court Candidate Diane Sykes

by Ed Whelan

The third Trump Supreme Court candidate whom pro-life activist Andy Schlafly flatly declares to be “NOT pro-life” (his emphases) is Seventh Circuit judge Diane Sykes.

Schlafly complains that Sykes  

ruled against a pro-life Indiana law and required taxpayer funding of Planned Parenthood; also, as a state court judge Sykes sentenced two veteran abortion protesters to 60 days in jail.

I’ll address these two complaints in reverse order:

1. As a state court judge, Sykes did indeed sentence two veteran abortion protesters to 60 days in jail. But she didn’t sentence them for protesting abortion. She sentenced them for cementing their legs to the front of a car parked at the entrance to an abortion clinic and thus shutting down the clinic. What sentence does Schlafly believe Sykes should have imposed? And on what basis?

It’s worth noting that Democratic senator Dick Durbin harshly criticized Sykes from the other side of the abortion divide (the side opposite Schlafly, that is) during her 2004 confirmation battle. Among other things, Durbin objected that Sykes reportedly told the two defendants, “I do respect you a great deal for having the courage of your convictions and for the ultimate goals that you sought to achieve by this conduct” and that “Your motivations were pure.” Somehow Schlafly doesn’t credit Sykes for the statements that Durbin faults her for.

2. Schlafly’s complaint that Sykes “ruled against a pro-life Indiana law and required taxpayer funding of Planned Parenthood” concerns her 2012 opinion for the Seventh Circuit in Planned Parenthood of Indiana v. Commissioner of Indiana State Dep’t of Health. His description of her ruling is, at a very high level, accurate, but it leaves out a lot and, more importantly, Schlafly fails even to contend that Sykes ruled incorrectly.

The Indiana law at issue would have barred state agencies from providing state or federal funds to any entity that performs abortions, even if the funds were to be used for services other than abortion. Sykes ruled that the “free choice of provider” provision in federal Medicaid law, which requires state Medicaid plans to allow patients to choose their own medical provider, preempted the Indiana law insofar as that law applied to services other than abortion. At the same time, and over the dissent of one panel member, she ruled that the Indiana law did not violate a federal block-grant statute and that it did not violate the unconstitutional-conditions doctrine.

Sykes was joined in full by Seventh Circuit judge (and Reagan appointee) Michael Kanne. Kanne, I’ll note, authored an opinion upholding the constitutionality of a Wisconsin statute providing for informed consent on abortion, and he also joined the Seventh Circuit’s en banc ruling in support of the constitutionality of state bans on partial-birth abortion. So he can’t be dismissed as just another “pro-abort” judge (and Schlafly doesn’t tag him with that epithet). The fact that the Supreme Court denied certiorari, with no dissent registered, also provides indirect evidence that Sykes got the law right.

That said, I’m entirely open to arguments that Sykes erred in her ruling. But Schlafly doesn’t bother to make any such arguments. His criticism of her for her ruling thus invites suspicion that he wants judges to indulge pro-life values to misread the law in order to reach pro-life results. 

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