When the Supreme Court voted 5-4 in June Medical Services, LLC v. Russo to strike down a Louisiana law requiring abortionists to have hospital-admitting privileges, it dealt a blow to the pro-life movement. However, while disappointing, “this was not a decision that sends us packing our bags,” said Louisiana Right to Life executive director Benjamin Clapper.
In Clapper’s view, the decision actually gained lost ground for the pro-life movement, as Chief Justice John Roberts’ concurrence, which controls as precedent for the lower courts, eviscerated the balancing standard established by Whole Woman’s Health v. Hellerstedt, a case involving a similar admitting-privileges law in Texas.
“The chief justice returned us to the Planned Parenthood v. Casey standard, where it’s the question of whether there’s a substantial obstacle to the undue-burden test,” he said.
Clapper’s hope is strengthened by the Court’s decision to vacate and remand the case of Box v. Planned Parenthood of Indiana and Kentucky, Inc. last week, involving an Indiana ultrasound and parental-consent law that the U.S. Court of Appeals for the Seventh Circuit had struck down as unconstitutional using the Hellerstedt decision.
The Indiana law is “breaking ground that Casey didn’t even address with parental consent,” Clapper said. “So, that’s certainly a hopeful new day that really, we believe, brings us back to pre-2016,” when Hellerstedt was decided.
In his concurrence, Roberts wrote that while he believed Hellerstedt, a case in which he dissented, had been wrongly decided, the Court was bound by precedent to strike down the Louisiana law.
While the chief justice has historically taken an incremental approach to chipping away at wrongly decided precedents, Chelsey Youman, Human Coalition’s Texas state director and national legislative consultant, said “we would argue that when a precedent is wrongly decided and you have the chance every five, maybe ten years to correctly decide that case, that’s what should be done.”
Senator Ben Sasse (R., Neb.) called the decision “plain terrible jurisprudence” in a statement to National Review.
“SCOTUS got this decision wrong by yet again trying to do footsie-politics. If the Court cares about preserving its legitimacy as a non-political institution, it shouldn’t make decisions based on how its judgments will be perceived politically,” the pro-life senator said.
Roberts has proven a wild card, siding with the liberal justices in the June Medical decision and in blocking the Trump administration’s attempt to end the Deferred Action for Childhood Arrivals program, as well as in a case that prohibited employment discrimination based on sexual orientation and gender identity.
“I think [the decision] is awful for conservative jurisprudence and I think for every pro-life American, Roberts is out,” said 40 Days for Life co-founder, CEO, and president Shawn Carney.
“He’s absolutely useless. It’s not that he’s a disappointment, it’s that no one respects him and this decision confirmed that.”
Roberts’ wavering loyalties have underscored the importance of both the vetting process in Supreme Court nominations and the upcoming 2020 presidential election.
“It’s important for (potential nominees) to have had drafted opinions on these issues and have published opinions on these issues so that we understand exactly where they stand when ultimately appointed,” Youman said of the vetting process.
President Trump “does an incredible job” of vetting justices, she added, a sentiment echoed by many in the pro-life movement who are pleased that President Trump’s justices, Neil Gorsuch and Brett Kavanaugh, have held to a conservative viewpoint in June Medical and other cases.
One or two more seats in the next four years would be exactly what the movement needs to “really ensure that Roe v. Wade is ultimately overturned,” she said.
March for Life president Jeanne Mancini stressed the importance of reelecting President Trump in November, as well as electing pro-life legislators, saying “this is the single most important election when it comes to pro-life issues.”
“For pro-lifers who know that culture is upstream of policy and that our biggest goals are to change hearts and minds and to create a culture where abortion is unthinkable, we also know that legislation and laws prescribe to people what is ethical and they influence culture,” Mancini said.
According to a May 2020 Gallup poll, 24 percent of registered voters said a candidate must share their views on abortion, while 50 percent said abortion was one of many important factors and 25 percent of respondents said it was not a major issue.
“The onus is really on Congress to take back Roe v. Wade,” Youman said. “The responsibility falls squarely on our legislators’ shoulders, that’s why it’s so important to vote for our legislators on this issue specifically because we don’t have to wait a lifetime — it’s been 47 years since Roe v. Wade was decided — to overcome it, we can simply pass the right legislation.”
In the meantime, the movement has other cause for optimism: abortion rates are at an all-time low, pro-life support is high — 47 percent of Americans say abortion is morally wrong and 9 percent say morality depends on the situation — and only 587 Planned Parenthood clinics remain open, down from a peak of 938 in the mid 90s.
“I think it’s hard to see sometimes the moment you’re in,” said Marjorie Dannenfelser, president of Susan B. Anthony List. “We are in the arc of history on abortion in the pro-life movement and very close to what is a beautiful story within some really difficult stories about the direction of the country.”