Is the Supreme Court seeking a judicial middle ground in the abortion wars—a stance that pleases and displeases prolifers and prochoicers alike, although for opposite reasons? If so, two pending cases could provide opportunity for it to move in that direction.
In one, the court is being asked to reverse a decision by the conservative 5th Circuit Court of Appeals approving restrictions on the abortion drug Mifepristone. The controversy originated with a group of prolife doctors who challenged Food and Drug Administration actions making Mifepristone easier to obtain. The case is Food and Drug Administration v. Alliance for Hippocratic Medicine.
The second case involves an Idaho law barring abortions in hospital emergency rooms except to save the mother’s life. The Justice Department, acting on behalf of the Department of Health and Human Services, argues that a federal law called the Emergency Medical Treatment and Labor Act overrides Idaho law and requires a permissive approach to abortion. The case is Moyle v. United States—Mike Moyle being Speaker of the Idaho House of Representatives—and comes to the Supreme Court on appeal from a ruling against Idaho by the liberal 9th Circuit Court of Appeals.
If the Supreme Court does have it in mind to demonstrate some version of impartiality, the Mifepristone case offers a simple way to please the pro-abortion side–hold that the unnamed anti-Mifepristone doctors lack legal standing since they haven’t suffered substantial injury through the drug’s availability. The justices appeared to lean that way during oral argument March 26.
Supposing the Supreme Court goes that route, a ruling based on a technical issue like ‘standing’ would be a win for prochoicers and a defeat for prolifers, though something less than unconditional vindication of Mifepristone.
The central question in the Idaho case is how strongly the Supreme Court will press the state’s rights rationale of its decision two years ago in Dobbs v. Jackson Women’s Health. In that ruling, the court rejected the idea that there is a constitutional right to abortion and held that individual states can impose restrictions on the procedure.
Moyle v. United States puts that line of reasoning to the test. The Justice Department argues that a federal law called the Emergency Medical Treatment and Labor Act overrides Idaho’s law and requires easily accessible emergency room abortions. Idaho calls that a “novel legal theory” floated by Health and Human Services to comply with White House instructions after Dobbs telling federal agencies to promote expanded access to abortion.
Prior to 1973, Idaho argues, states could address the “profound moral issue” of abortion as they saw fit. Then the Supreme Court in Roe v. Wade made itself the champion of abortion nationwide. But, the state says, that changed two years ago in Dobbs when the court reversed Roe and affirmed the right of states to enact laws reflecting the “widely divergent views” on abortion that actually exist. “Idaho’s Defense of Life Act is one such law,” the state concludes.
Among many friend of the court briefs filed with the Supreme Court in Moyle is one by the United States Conference of Catholic Bishops joined by several Catholic health care groups. After analyzing the federal law used by the government to attack Idaho’s law, the USCCB brief concludes that to claim the statute supports abortion contradicts its “unambiguous text and intent” to the contrary.
The court heard oral arguments in Moyle v. United States April 24. Decisions in both these cases are expected before the court’s term ends in June.
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Of course they are:
“But in his majority opinion, Justice Harry Blackmun notes, “If this suggestion of personhood is established, [Roe’s] case, of course, collapses, for the fetus’ right to life would then be guaranteed specifically by the [14th] Amendment.”
Unfortunately, by refusing to affirm that a beloved son or daughter residing in their mother’s womb is a human person, making it appear as if it is possible for human persons to conceive a non human person, and thus denying that our unalienable Right to Life, Liberty, And The Pursuit Of Happiness are not inherent, unalienable Rights, endowed to us from God, with the capital G. , they deny The Spirit Of The Law, and The Spirit Of Our Constitution , in order to turn our Republc upside down.
The Good News is, you can “Keep your Republic”, as long as you render onto Caesar what belongs to Caesar and to God, The Author Of Love, Of Life, And Of Marriage, Through The Unity Of The Holy Ghost, what belongs to God, which is why The Treaty Of Paris, The Treaty to end the Revolutionary War, was proclaimed “In The Name Of The Most Holy And Undivided (Blessed )Trinity, and not in the name of Caesar , John Locke, or King John.
Furthermore, the intentional destruction of an innocent beloved son or daughter residing in their mother’s womb, which is never a “victimless “ crime , and in fact, establishes “a risk of harm”, to all future generations, stands in direct conflict with both The Spirit Of The Law and The Spirit Of The Constitution in regards to first and foremost, securing our inherent, unalienable Right to Life, upon which securing and protecting our inherent unalienable, Right to Liberty and The Pursuit Of Happiness depends and thus forming a more perfect Union, establishing Justice, insuring domestic Tranquility, providing for the common defense, promoting the general Welfare, and securing the Blessings of Liberty to ourselves and our Posterity, depends in every State of The United States Of America.
Furthermore, the intentional destruction of an innocent beloved son or daughter residing in their mother’s womb, which is never a “victimless “ crime , and in fact, establishes “a risk of harm”, to all future generations, stands in direct conflict with both The Spirit Of The Law and The Spirit Of The Constitution in regards to first and foremost, securing our inherent, unalienable Right to Life, upon which securing and protecting our inherent unalienable, Right to Liberty and The Pursuit Of Happiness depends and thus forming a more perfect Union, establishing Justice, insuring domestic Tranquility, providing for the common defense, promoting the general Welfare, and securing the Blessings of Liberty to ourselves and our Posterity, depends in every State of The United States Of America.
If it is true that being a human person is merely a matter of opinion, then “to hell” with our Constitution, which would make it a lie from the start, and we may as well all hang our Flags upside down.
But since it is true that a human person can only conceive a human person, and, in fact, there is absolutely no evidence that there ever existed human persons who conceived a son or daughter who was not, in essence, a human person, personhood for every beloved son or daughter is established, and “Roe’s] case, of course, collapses, for the fetus’ right to life would then be guaranteed specifically by the [14th] Amendment.”
There are no “abortion wars.” The only war being waged is a war against defenseless human persons in their mother’s womb.
But surely you’d agree that there has been a decades-long conflict/war between those who worship abortion as a sort of evil sacrament and those who oppose it because it is a deadly assault on those in the womb?
Certainly, Carl. The problem I have with alikening it to a “war” is that wars sometimes end in cease-fires, truces, accommodations, mutually-agreed terms of ending conflicts. There can never be such a thing when it comes to brutally murdering an innocent and defenseless person. The act itself can never be countenanced.
Russell Shaw details the two apparent pivotal cases well, no need to paraphrase. What is of interest or better said concern are the ideology bound justices who usually vote in unison regarding abortion. Presumed prolife justices, Barrett, Kavanaugh, and Gorsuch have at times voted in favor of what the law they believe states even if it disagrees with their personal views.
Chief Justice Roberts however indicates concern with the public appearance of the court, and has at times voted with the more liberal justices apparently to project a more favorable appearance for other jurists, legal scholars, which as such is more self interest for his legacy than the pursuit of justice [God instructed Moses to be completely impartial regardless of the case or the interested parties]. He may well be the deciding vote in maintaining a balance rather than impartial decision. Although this basically Trump arranged court is far better in the pursuit of justice than preceding bodies it is not flawless.
Certainly, Carl. The problem I have with alikening it to a “war” is that wars sometimes end in cease-fires, truces, accommodations, mutually-agreed terms of ending conflicts. There can never be such a thing when it comes to brutally murdering an innocent and defenseless person. The act itself can never be countenanced.
Insofar as justice, the right to life is supreme, God’s law, which no manmade law has the right to remove. Therefore, there is no just right to abortion. Therein is the antagonism between justice and injustice regarding human life. Furthermore, it’s not a law that’s relegated to a religious tenet outside the law because the right to life is law natural to Man, the natural law. As such it’s an indisputable legal right. Our difficulty is our culture is pluralist. Not all agree on what is justice. Dispute with those who contend the infant in the womb is not a human life is the inevitable reality in a world, for us the Western world that has abandoned its Christian heritage.
Do we then have a right to reject all [assuming all such laws in the books are illegal because they are immoral] unlawful prescripts that in effect are murder of the innocent. Morally yes. Legally I would also say yes, except that in this volatile antiChrist society it would likely provide bloodshed. Therefore moderation is required regarding unjust laws until we hopefully reach a time when reasoned justice can prevail.
Additionally, Moyles representing Idaho has the stronger case against the United States because the Idaho prohibition statute preceded the US appeal to overturn it. If the decision were up to me I would vote in favor of Idaho based on that, and more importantly the belief that no civil statute can overrule a right to life.
This comment is more a hypothetical on what a supreme court justice might consider what’s prudentially best. In fact there doesn’t seem to be a great risk of violent reaction in the Idaho case wherein the lesser evil principle would come into play. What is the case as mentioned by others is states rights which the federal government is impinging upon.
The “middle ground” is probably something like being half-pregnant. Or, maybe it’s even like the question posed to Solomon by two women claiming the same child? In this second instance, we need the wisdom if not that of Solomon, then at least that of a runaway slave named Jim…
Even Mark Twain’s Jim understood what was self-evident in the dispute set before Solomon: “De’ spute warn’t ’bout a half a chile, de ’spute was ’bout a whole chile; en de man dat think he kin settle a ’spute bout a whole chile wid a half a chile, doan’ know enough to come in out’n de rain” (The Adventures of Huckleberry Finn, 1884).
Can the United States Supreme Court “come in out’n de rain”? Or, will it decide that once the baby presented to Solomon is dismembered and legless, he no longer has standing?
The Supreme Court, via the Dobbs Decision, kicked the issue of abortion back to the states, where it had resided pre Roe. In keeping with that judicial philosophy, I think that the Court will rule that States may either ban or allow Mifepristone as they see fit.
The current overriding judicial philosophy of “Originalism” favors states rights. If Texas wants to ban it and California wants to allow it, so be it.
Yes,this would be a compromise of sorts, but it would also be inline with Dobbs, Judicial consistency is the goal,not necessarily morality.
“The current overriding judicial philosophy of “Originalism” favors states rights. If Texas wants to ban it and California wants to allow it, so be it.”
The Fourteenth Amendment is binding in both State and Federal Law.
Sorry, Mr. Shaw. You misunderstand what is at stake in the Mifepristone case. The Court does not try to “appease” one side or the other. It decides legal issues. You seem to think they want to play politics and attempt to be some sort of political arbiter. This is not what is happening. In the Mifepristone case, the issue before the court is whether the FDA abided by the law when they rushed this drug into use. As I understand it, the Clinton administration, and later the Obama administration, both ignored the Federal law regulating the FDA, and they pushed the drugs into use without the required testing to make sure they were safe. I have read the lower court decisions, and it is pretty clear the FDA played fast and loose with the law. THAT is what the court will decide here – whether the law was followed or not. It is not a matter of trying to placate the various political groupings in the country.
Perhaps abortion issue is a tug a war that will go on endlessly. Each side will “pack the court “ when in office either by appointing new members when vacancies occur or creating new seats through legislation. The only way that abortion will end is when there are no longer people who want them, and the only way that will happen is when they understand that it is wrong. Education is the answer. Education is permanent while legislation is temporary and always subject to change.
Mr Connor , education is always something beneficial but it didn’t stop chattel slavery or a host of other human rights violations.
In a perfect world we’d desist from harm and exploitation of the most vulnerable voluntarily but in our fallen world we require laws and consequences.