Government & Politics

SCOTUS: Some Rights Are More Equal Than Others

Yet another reminder of the Court's importance this November.

Paul Albaugh · Jun. 28, 2016

What happens when the rule of men supplants Rule of Law? In the case of Whole Woman’s Health vs. Cole, you end up with a Court decision that strikes a severe blow to those who seek to protect the lives of the unborn. The most significant abortion decision in a quarter century is also yet another reminder of the Court’s importance this November.

Yesterday, the Supreme Court ruled 5-3 to strike down a Texas law in its entirety over two particular requirements. First, abortionists had to have admitting privileges to a local hospital. Second, clinics had to meet surgical standards. Both provisions in Texas law were enacted to protect mothers and the lives of unborn children.

Justice Alito noted, “The law was one of many enacted by states in the wake of the Kermit Gosnell scandal, in which a physician who ran an abortion clinic in Philadelphia was convicted for the first degree murder of three infants who were born alive and for the manslaughter of a patient.”

And National Review adds, “Whole Women’s Health, which operates facilities in four Texas cities, was disciplined repeatedly by the state for offenses ranging from failing to have licensed nursing staff at the facility (2007) to illegally dumping medical waste (2011) to using rusty equipment (2014). In 2013, it was cited on 13 different safety-code violations.”

In addition to ensuring that qualified doctors were the only doctors allowed to perform abortion procedures, the Texas abortion law would also have reduced the number of clinics from 42 to 10. The state government had essentially decided that the other 32 locations were unsuitable for medical procedures. Again, Texas was trying to protect mothers and unborn children.

But SCOTUS decided that the restrictions in Texas posed an “undue burden” on a woman’s supposed constitutional right to have unrestricted access an abortion. Aren’t abortion supporters supposed to be worried about “safe” abortions?

Justices Anthony Kennedy, Sonia Sotomayor, Elena Kagan, Ruth Bader Ginsberg and Stephen Breyer delivered the majority opinion, while Samuel Alito, John Roberts and Clarence Thomas dissented. Even a living Antonin Scalia wouldn’t have saved this one.

“We conclude that neither of these provisions offers medical benefits sufficient to justify the burdens upon access that each imposes,” argued Breyer’s majority opinion. “Each places a substantial obstacle in the path of women seeking an abortion, each constitutes an undue burden on abortion access, and each violates the Federal Constitution.”

Following the decision, Obama crowed, “I am pleased to see the Supreme Court protect women’s rights and health today. These restrictions harm women’s health and place an unconstitutional obstacle in the path of a woman’s reproductive freedom.”

And of course Hillary Clinton chimed in, “This fight isn’t over: The next president has to protect women’s health. Women won’t be ‘punished’ for exercising their basic rights.”

Did you catch all of this nonsense? The Texas law violates the Federal Constitution, it imposed an unconstitutional obstacle and women’s basic rights won’t be punished.

Exactly which Constitution are these people reading? To be abundantly clear, there is absolutely nothing in the Constitution that secures or provides a woman’s ability to take the life of her unborn child. Period.

Writing in a blistering dissent, Justice Thomas maintained that the majority’s decision “ignores compelling evidence that Texas’ law imposes no unconstitutional burden.” Thomas also objected that the decision “perpetuates the Court’s habit of applying different rules to different constitutional rights — especially the putative right to abortion.”

He went further, writing, “The Court has simultaneously transformed judicially created rights like the right to abortion into preferred constitutional rights, while disfavoring many of the rights actually enumerated in the Constitution. But our Constitution renounces the notion that some constitutional rights are more equal than others. A plaintiff either possesses the constitutional right he is asserting, or not — and if not, the judiciary has no business creating ad hoc exceptions so that others can assert rights that seem especially important to vindicate. A law either infringes a constitutional right, or not; there is no room for the judiciary to invent tolerable degrees of encroachment.”

There is a constitutional right to keep and bear arms, and rights to free speech, due process and private property, among others. Statists go out of their way to impose restrictions and regulations on those rights. But in this case, the black-robed despots declared that Texas cannot impose regulations or restrictions on a right that previous justices created out of thin air.

The majority opinion also addressed the argument that new regulations from Texas would prevent misconduct. Breyer wrote, “[T]here is no reason to believe that an extra layer of regulation would have affected that behavior. Determined wrongdoers, already ignoring existing statutes and safety measures, are unlikely to be convinced to adopt safe practices by a new overlay of regulations.”

If that is the case for abortion, then why doesn’t the Court consistently apply the same reasoning to restrictions on the right to own firearms, or due process, or religion?

Sadly, the Supreme Court’s decision is a severe blow for Texas and those across America who fight for life. And the decision will most likely open up new cases against other states that have passed similar measures. Conservatives in Texas lost this battle, but the war is far from being over. The next battle is the presidential election, which will decide who nominates the next justice(s). Don’t underestimate the importance of the future composition of the courts.

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