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Supreme Court must confront federalism against abortion policy

By Benjamin Wetmore 

The impact of Texas’ abortion law has everyone talking. The law creates a civil penalty that strongly discourages having or participating in an abortion after the discovery of a baby’s heartbeat, typically after 6 weeks development in the womb. 

The nation’s abortion jurisprudence is a hot mess though, and it’s in that 40-year disaster that the Texas law was passed. The legal confusion the Court perpetuates is rarely examined in the media or in opinion pieces about abortion policy. 

If you legitimately believe abortion is murder, and if a state has ‘police powers’ to regulate what should be a crime within its borders, the question remains; Can they regulate or criminalize abortion, abortion providers, and those who facilitate an abortion? 

If a liberal state can say abortion is nothing more than basic healthcare to purge an unwanted ‘clump of cells.’ then shouldn’t a conservative state be allowed to ban procedures that kill a wanted child?  

Most people gravitate for legal clarity to Roe v. Wade. The case was most famous for authorizing abortion in all 50 states. In reading Roe, however, one doesn’t find abortion permission as much as a discussion about when individual states might have a real interest in stopping an abortion and regulating abortion. 

Roe is the central framework for how the Court said in 1973 that a state could regulate and ban abortion at different stages of development.  

Roe instituted an artificial trimester system where the first trimester wouldn’t be regulated, and the third would be. The fight was over whether states could ban abortions in the second trimester. But the basic holding in Roe is not the law in America. America has the most liberal abortion laws in the world, thanks to Roe’s companion case Doe v. Bolton

Bolton says that abortions for ‘health’ reasons are really any reason: economic health, mental health, social health. If a reason could be thought up, it would fall under Doe’s expansive definitions permitting an abortion. 

Roe also came through a series of cases, notably Griswold in 1965, which extended and defined the “right to privacy.” Griswold involved whether a married couple in Connecticut could receive birth control packages through the mail. 

But if Roe is about privacy and how states can regulate abortion, by 1993’s Casey v. Planned Parenthood the Court is telling states how they cannot regulate abortion if it creates an ‘undue burden’ for the abortion-minded woman. The Court noted it offends ‘due process.’ This is a legal way of saying courts dislike the government creating policies that hurt an individual’s right to life, liberty, or property interests.  

But the Casey Court also says they only want to allow abortions in ‘non-viable’ pregnancies. This means that if the unborn child could live outside the womb, then the state would have an interest in regulating it and stopping the practice. 

The major problem here is that science has made ‘viability’ a moving target due to technological developments. In December 2019, Jemarius Jachin Harbor Jr. was the youngest premature or ‘preemie’ baby to survive, at 21 weeks or 5 months 1 week development.  

But that happy news confuses what abortion really is: the deliberate destruction of an unborn child. By using ‘viability’ as a legal standard, the Court confuses abortion with healthcare where doctors are trying to save the life of a child. A child can be terminated at any age by chemicals, scalpels, vacuums, or salines that burn it alive.  

And no state is trying to ban medical intervention to save a premature baby. They are trying to ban medical intervention to kill a premature baby.  

A conservative state that wants to ban abortion is told that it can under Roe even though it can’t. It’s said that simple regulations like parental consent is an ‘undue burden’ and isn’t legal. The Court tells a state it can’t ban partial-birth abortion, but it can ban one type of partial-birth abortion procedures. 

More so, a state can regulate almost every other aspect of surgery, medical facilities, standards, admitting privileges, and informed consent standards. However, it can never regulate abortion without a constitutional challenge that brings before a federal judge whether a specific action constitutes an ‘undue burden.’ 

This ongoing confusion is what leads both sides of this political fight to see an ongoing unsettled legal question that the Court purposefully evades answering. 

What’s going on is that the Court is not composed of esteemed jurists who want to impartially apply the objective law to the situation dispassionately. Instead, we have zealots who want to find any rationale, any excuse, to allow abortion. 

The two dissenters on the Roe court were William Rehnquist and Byron White: a conservative Nixon appointee and a liberal Kennedy one.  

The easiest answer would be to punt this issue to the states and state governments to sort out. They could allow abortion in the liberal states that want it while also allowing its ban in the conservative states that don’t. 

But it’s been clear for decades that only conservative states need to work to advance their principles. Liberal justices will instead always issue sweeping rulings to set aside the permitted regulations the Court said a decade or two ago and will impose new rules and precedents in order to wipe away the pro-life laws.  

In this way the Court’s likely invalidation of Texas’ law further betrays this rigged legal game. States can do whatever they want as long as they don’t offend their elites’ values. 

Our elites have been convinced for generations that it’s preferable to abort the poor than to feed them. It’s better to abort the criminal before he’s born. It’s better to snuff the worker out than to share spoils with them. These monstrous views are held by our cultural, social, media, financial, religious, and judicial elites. 

Those willing to murder babies are willing to twist any word, ignore any precedent, to perpetuate the regime of surgical abortions that have killed over 60 million unborn. 

The only ‘undue burden’ is that which inspires elite Ivy league graduates to exterminate the populations of cities like Omaha, Atlanta, Detroit and Boise.  

The uncourageous Roberts court is likely to pursue objections about technicalities, such as by saying the 6-week ban is too early, or to complain about permissive standing. That would give standing to the public to pursue these claims. 

In sum, the Court won’t directly engage the merits because they don’t want to reveal their sacred sacraments: abortion on demand without restriction. 

To avoid wrestling with these issues directly, the Court has relied on a great deal of wordsmithing and vague utterances such as ‘undue burden’ in order to muddy the waters. But now, Texas has made the choice clear for the Court. 

They can choose either to protect abortion, or to recognize a state’s right to regulate it. 

Every political question ultimately comes before the Court for clarity and resolution, but rarely are they so revealing as to what morals guide our supreme Justices. 

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Benjamin Wetmore

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