Waiting For The Supreme Court To Change, Pro-Lifers Must Cling to Justice

Justice isn’t always the same thing as following the rules. At times, the gap between the two can be daunting in its enormity. 

We see this gap on display in recent federal legal battles over abortion. The past several years has seen a surge in pro-life legislation, culminating this past spring and summer with numerous states passing “heartbeat bills” banning abortion after detecting a fetal heartbeat. Others, like Pennsylvania, are considering such legislation even now.

But this month showed that lower court judges can be of little help in this effort. One example is the recent decision in Planned Parenthood of Greater Ohio v. Himes. In 2017, Ohio banned terminating a pregnancy due to a fetal Down Syndrome diagnosis. Planned Parenthood quickly sued to block the law’s enforcement, which a federal district court granted. On October 11, by a 2-1 vote, the Sixth Circuit affirmed this decision.

The majority was just following the rules. Lower federal courts are bound by Supreme Court precedent. That means that judges must abide by the reasoning and outcome of SCOTUS decisions when adjudicating like litigation. Regarding abortion, Roe v. Wade (1973), of course, is the decision establishing abortion rights. However, the controlling precedent on the matter has been Planned Parenhood v. Casey (1992).

Casey drew a firm line at viability, meaning the point in development when an unborn child could survive outside the womb. After viability, a state could ban abortion so long as said prohibition included a health exception for the mother. But “[b]efore viability, the State’s interests are not strong enough to support a prohibition of abortion.” Therefore, the Supreme Court said that “[r]egardless of whether exceptions are made for particular circumstances, a State may not prohibit any woman from making the ultimate decision to terminate her pregnancy before viability.”

The majority opinion in Himes, composed by Judge Bernice Donald, blocked the Ohio law as contravening this reasoning. Donald’s opinion noted that Casey gave no caveats to the woman’s power to choose. Prior to viability, a state might regulate for the mother’s health and safety. It could seek to inform, even persuade the woman to bring her baby to term. Yet it could not use the force of law to stop a woman from procuring an abortion if she so wished; regardless of the reason she so wished.

The dissent, written by Judge Alice Batchelder, rebutted this point by appealing to Gonzalez v. Carhart (2007). That Supreme Court decision upheld a ban on all partial-birth abortions, including those performed pre-viability. So, perhaps this ban, too, could hold up within the Casey framework. But an important difference existed between Carhart and this case. Carhart only banned a particular abortion procedure. In fact, one reason Carhart gave for the partial-birth abortion ban’s legitimacy was that “[a]lternatives are available to the prohibited procedure.” Even with one procedure proscribed, a woman could still get an abortion for any reason prior to viability. By contrast, the Ohio law did not ban a specific means to end a pregnancy. It banned women entirely “from making the ultimate decision” if they did so for a particular reason. This they could not do, Casey clearly said.

Thus, the majority followed the rules. The dissent did not. Instead, Judge Batchelder’s opinion followed justice. She pointed to the wicked assumption behind aborting those with Down Syndrome. “Today,” she wrote, “many countries celebrate the use of abortion to cleanse their populations of babies whom some would view — ignorantly — as sapping the strength of society.” This ignorant view misunderstood the contribution those with disabilities make to co-workers, family members, and others in their community. Even more, it partook of the greater lie falsely propping up the abortion industry – that some lives were better off not lived. That some lives were simply a waste of time, space, and resources. So thinking treated fellow persons as inherently unequal to ourselves, as less than human.

Judge Batchelder went on to tie these abortions to the evil of the eugenics movement of the early 20^th century. This movement sought to weed out undesirable human genetic characteristics, often by weeding out persons undesirable for carrying said characteristics. Referencing comments made by Justice Clarence Thomas, she spoke of legitimate reasons for states to keep “abortion from becoming a tool of modern-day eugenics.” These reasons included not only maintaining of human dignity but preserving some semblance of medical ethics.

The majority here got it right and got it wrong. Other federal judges must continue to do so, at least so long as the gap persists between justice and Supreme Court precedent. Proponents of state pro-life legislation must cling to right, and hope for change. 

Adam Carrington is an assistant professor of politics at Hillsdale College.

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