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SCOTUS: Built for the Roe Ahead?

Tony Perkins · Jul. 12, 2018

In the 48 hours since America met Justice Anthony Kennedy’s replacement, most people are probably wondering: Is this a debate about the Supreme Court, or abortion? You can’t blame them for being confused. In the thousands of articles posted about Brett Kavanaugh since Monday night, it’d be tough to find one that didn’t mention Roe v. Wade. Everyone wants to know: “Will he” or “won’t he” be the vote that finally puts the deadly ruling to rest?

President Trump certainly didn’t leave a lot of people wondering in 2016 when he told “60 Minutes,” “I’m pro-life. The judges will be pro-life.” Two months later, he went to work proving it, sending more nominees to the Senate for confirmation than any commander-in-chief in history. If people had doubts, the confirmation of Neil Gorsuch — and a blockbuster term of Supreme Court wins on life, religious liberty, and free speech — should have put them to rest.

Still, after a year and a half of exceptional judicial picks, some conservatives still seem tentative on Kavanaugh. They point to his 2006 hearings when he told Senate Democrats that he “would faithfully follow Roe v. Wade.” “That would be binding precedent of the Court,” he said. “It’s been decided by the Supreme Court. I don’t think it would be appropriate for me to give a personal view.” Comments like that set off a lot of alarms for pro-lifers, who took that as a sign that Kavanaugh wouldn’t have the stomach for overturning Court-created abortion “rights.” FRC’s Travis Weber understands how that could send the wrong signal to Americans who are passionate about ending the bloody legacy of Roe v. Wade. But, he explains, Kavanaugh answered that as a candidate for the appellate court, which is generally bound to follow Supreme Court precedent — which, unfortunately, Roe is.

What Kavanaugh pledged was to fulfill the proper role of a lower court judge. Amy Coney Barrett, who a lot of pro-lifers preferred over Kavanaugh, gave a similar answer in her confirmation hearing for a seat on the Seventh Circuit Court last year. Despite her personal beliefs on abortion, she said she would have “no interest in” challenging the Supreme Court precedent for Roe v Wade. As much as she or Brett may object to the ruling (even on constitutional grounds), their job is to defer to the higher courts.

The role of a Supreme Court justice is entirely different. On SCOTUS, Kavanaugh has no obligation to a higher court. His loyalty — and the loyalty of every justice — is to the Constitution itself. Twelve years ago, he gave a generic answer (as most nominees do), so that he didn’t give the appearance of pre-judging a case that wasn’t yet before him. So the fact that Kavanaugh would promise to uphold Roe, Travis points out, “is a not necessarily a bad sign, but doesn’t tell us a whole lot either. What we do know is that he has a good originalist philosophy overall.”

The bottom line is this: If we have a Supreme Court that’s in line with the Constitution, the right to life will be protected. The Left knows that as well as anyone. That’s why the president’s opponents are making abortion such a big issue in Kavanaugh’s confirmation fight. With the states passing wave after wave of pro-life laws (401 since 2011!), liberals know that their only hope of preserving the dynasty of abortion-on-demand is through the courts.

Just think: The last seven years have produced 34% of the 1,193 abortion restrictions enacted by states since the 1973 Roe decision. This media drumbeat about the country becoming more “pro-choice” is the definition of fake news. This week, the president of NARAL Pro-Choice America told reporters that pro-lifers needed to spend money on campaigns like this one because “they don’t have the American people on their side.” She floated a statistic from the Kaiser Family Foundation that insists only 29% of the country supports overturning Roe v. Wade.

Not so fast, says researcher Michael New. First of all, he fired back, only 62% of America even know Roe has to do with abortion! Furthermore, he explains, even the ones that do don’t understand what the ruling did. “Many wrongly think that overturning Roe v. Wade would result in national ban on abortion, instead a reversal of Roe would return the issue to the states.” In all this talk of Roe, we shouldn’t overlook other disastrous rulings like Casey v. Planned Parenthood. That 1992 decision is what stops the government from putting a so-called “undue burden” on a woman’s “right” to abortion.

What’s more, New says, most of this recent polling (including Kaiser’s) doesn’t explain to respondents that Roe v. Wade “effectively legalized abortion on demand for all nine months of pregnancy and makes it difficult to place limits on late-term abortions.” The American people are hugely opposed to second- and third-trimester abortions (28% and 13% support, respectively). “Both the Gallup and the Pew Research Center found that support for Roe v. Wade was over 60 percent,” New confirms. But “when the Los Angeles Times described Roe v. Wade as the decision ‘which permits a woman to get an abortion from a doctor at any time’ — support fell to 43 percent.” Those are critical distinctions that make the far Left’s climb a whole lot steeper on life issues.

For now, the president’s opponents will keep ramping up their attacks on the president’s pick in a desperate attempt to derail him. But at the end of the day, most conservatives are hoping Kavanaugh turns out to be exactly what the Left is worried he is: a strict, no-nonsense originalist who will bring the Court back under the Constitution’s control.

Originally published here.


Avoiding the Parent Trap on Family Separation


The city of Washington has been so dominated with Supreme Court news that it’s easy to forget there’s other business underway. The House is taking the lead on a lot of it, combing through the second-largest spending bill Congress sees every year: the Labor-HHS-Education package. On a typical day, mark-ups like this one don’t get a lot of national attention. This time around though, things are different. And a red-hot debate over the border is a big reason why.

There’s a lot to unpack about any $177 billion appropriations bill. Democrats, however, will be focused on one thing: family separation and what HHS is doing about it. The president’s opponents have been doing their best to keep the issue front and center despite at least two hurdles: 1) President Trump largely ended the practice by executive order earlier this summer and 2) public polling shows that most Americans blame the parents — not the White House — for the separations.

Still, House Minority Leader Nancy Pelosi’s (D-CA) party vowed to make an issue of it in committee, promising to introduce as many as 50 amendments on the subject. Congressman Tom Cole (R-OK), who oversees Labor-HHS-Education spending, told reporters he was staying the course. As far as he’s concerned, the administration hasn’t asked for more money to deal with the issue at the border because HHS is appropriately handling it. In an interview with CQ, he said he was “loathe to use the spending process to enact any broad policy overhauls.”

And based on the transparent reporting by HHS, there’s no reason for it. When the agency was asked for a status update on reunifying families, the department was blunt. After a court ordered HHS officials to put 102 children back with the parents by July 10, HHS made no apology for taking a thorough and careful approach. By the end of Tuesday, 54 kids were expected to be returned to their parent(s). But, HHS pointed out, there are some very real dangers in rushing these children. DNA testing (and the threat of DNA testing) has already outed a number of these “parents” as frauds. Instead, they used these kids to get across the border, putting them in potentially deadly situations.

The circumstances, as the administration has been warning for months, is complicated to say the least. “We all want the children back with parents,” officials at HHS said, “but we are committed to verification for the safety and welfare of the children.” And despite what the other side would have you believe, that is the compassionate and responsible response. “Among other discoveries,” HHS told reporters, “we have learned that some parents have criminal histories including child abuse and child cruelty, child smuggling, narcotics crimes, robbery convictions, and even an outstanding warrant for murder. Other adults who claimed to be parents are not.”

To protect as many kids as possible, the agency outlined a four-step system that includes vetting (testing for communicable disease, DNA verification, background checks, etc.), transfer to Immigrations and Customs Enforcement (ICE) custody, preparation and transportation from the children’s shelters, and reunification. “Our process may not be as quick as some might like but there is no question that it is protecting children,” said HHS’s Chris Meekins. “If we had just reunited kids with the adults, we would be putting them in the care of a rapist, a kidnapper, a child abuser, and someone who was charged with murder in their home nation.”

That doesn’t seem to matter to Judge Dana Sabraw, who set the arbitrary timetable from her federal district court in San Diego. “These are firm deadlines,” she said, “they are not aspirational goals.”

No one wants children to be separated from their actual parents, but, as President Trump said, there is a way to prevent it. “Tell people not to come to our country illegally. That’s the solution. Don’t come to our country illegally. Come like other people do. Come legally.” When a reporter suggested his response was cruel, the president didn’t blink. “I’m saying this, very simply: We have laws. We have borders. Don’t come to our country illegally. It’s not a good thing.” Certainly for the innocent children involved, he’s right.

Originally published here.


Bulldogs Unleash on Secularists at FFRF


Football fields are for playing — not praying. That’s the message from the extremists at Freedom from Religion Foundation. But if they were hoping to convince the coaches at Waldron High School, they’ll have to try harder. The Arkansas community isn’t about to apologize for inviting alum Konnor McKay to give a devotional before the team’s summer camp. In fact, if anyone’s sorry, it should be the secularists who are bullying towns like this one!

“I was invited to share an encouraging word with the football team,” McKay said on “The Todd Starnes Show.” “I used Scripture and shared a message about teamwork — how to work together in life.” The time with his Bulldogs was so inspirational, Todd says, that the local newspaper published a story about it. FFRF, which likes to troll rural towns for expressions of faith, must have seen it and fired off a letter insisting that “players were subjected to Christian proselytization by evangelist Konnor McKay. It is a fundamental principle of Establishment Clause that public schools may not advance, prefer or promote religion.”

First Liberty Institute would beg to differ. Attorney Michael Berry, who joined Todd to talk about the case, explained that Konnor didn’t “proselytize.” He didn’t hold an altar call on the football field or baptize anyone. “He was invited by the head coach to give an encouraging word at football camp, which he did,” Berry said. “When FFRF found out [about it] they made false accusations against McKay and demanded he not be allowed back.”

McKay, who says support has poured in from all across Arkansas, can’t understand the foundation’s gripe. “I’m a little bit shocked, to be quite honest with you,” McKay told me. “This guy from Wisconsin — why does he care what is happening in Scott County, Arkansas?” Good question. The foundation has been put in its place by so many courts that it has a new game plan: intimidate small towns that they believe either don’t have the money or the will to fight back.

Unfortunately for FFRF, the Bulldogs have some good defense in First Liberty. And if the foundation wants to shut down faith on the field, it’ll have to get through First Liberty — and the Constitution — first.

Originally published here.


This is a publication of the Family Research Council. Mr. Perkins is president of FRC.

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