The Corner

Law & the Courts

Another Sloppy Blue-State Lawsuit

A few weeks ago I wrote about a lawsuit by four states that want to get part of the Republican tax law overturned on constitutional grounds. Analysts left, right, and center have mocked that lawsuit. Now the attorneys general of three of the same four states, joined by their equivalents in nine others and the District of Columbia, are making a legal case against another Trump-administration policy: its rule that federal family planning funds will not go to programs that perform abortions or provide abortion referrals.

They argue, among other things, that the policy is unconstitutional. The most directly relevant Supreme Court precedent on this issue is Rust v. Sullivan, a 1991 case in which a majority upheld the constitutionality of a set of policies that went further than Trump’s in restricting funding. (The new rules allow nondirective counseling that mentions abortion.) The liberal AGs handle this precedent by the simple expedient of ignoring it completely.

The AGs also write, “American women possess a constitutional right to be free of impermissible government interference when they seek to make choices about their own bodies. This applies when they seek reproductive healthcare services, including healthcare information, contraceptives, and/or referrals for abortion.” The first sentence is tautological, if “impermissible” means “unconstitutional.” But the passage includes a citation to the Supreme Court’s Akron (1983) and Thornburgh (1986) decisions, which did indeed hold that a broad range of governmental efforts to favor childbirth over abortion were impermissible. Unfortunately for the AGs—and for whoever they got to draft this analysis—the relevant portions of those decisions were overruled in Planned Parenthood v. Casey (1992) (“we must overrule those parts of Thornburgh and Akron I which, in our view, are inconsistent with Roe’s statement that the State has a legitimate interest in promoting the life or potential life of the unborn”).

My general prejudice is that liberal state governments spend too much money. But maybe they should spend a bit more to get better lawyers.

Ramesh Ponnuru — Ramesh Ponnuru is a senior editor for National Review, a columnist for Bloomberg View, a visiting fellow at the American Enterprise Institute, and a senior fellow at the National Review Institute.

Most Popular

Politics & Policy

The Origins of Progressive Agony

What has transformed the Democratic party into an anguished progressive movement that incorporates the tactics of the street, embraces maenadism, reverts to Sixties carnival barking, and is radicalized by a new young socialist movement? Even party chairman Tom Perez concedes that there are “no moderate ... Read More
Elections

How Will the Senate Races Break?

How will the Senate races break? We have less public polling to go on than in recent years, so answering that question is harder than ever. But the news is more optimistic for Republicans than it was a month ago.   Waves and Breakers Four years ago, I projected in mid September that if “historical ... Read More
PC Culture

Warren Is a Fraud

Senator Elizabeth Warren (D., Mass.) has been telling a story for years. It’s a deeply romantic story about her parents and their young love, fraught with the familial bigotry of an earlier time. Here’s how she told it this week in a video she released in preparation for her 2020 run: My daddy always said he ... Read More
U.S.

Two Minnesota Republican Candidates Assaulted

Two Republican candidates for state office in Minnesota have been physically assaulted in recent days, leading prominent Republican lawmakers to caution their Democratic colleagues against employing inflammatory rhetoric. Republican state representative Sarah Anderson was punched in the arm last week after ... Read More
Law & the Courts

A Christian Man Receives Justice

A good man’s legal ordeal is at an end. Yesterday, my friends and former colleagues at the Alliance Defending Freedom announced that former Atlanta fire chief Kelvin Cochran had reached a $1.2 million settlement, ending a case he brought after the city fired him for writing -- and distributing to a select few ... Read More