Author archives: Katherine Beck Johnson

The Link Between Abortion and Eugenics Makes Its Way to the Federal Appeals Courts

by Katherine Beck Johnson

December 19, 2019

Among a number of recent developments in the federal appeals courts regarding abortion jurisprudence, one of the most notable is their discussion of eugenics. Though the history of infamous characters like Margaret Sanger and the link between eugenics and abortion has been known for some time, it didn’t make its way into court opinions until Justice Thomas wrote a lengthy concurrence in Box v. Planned Parenthood explaining the history of abortion being used as a tool to achieve eugenic objectives.

In an attempt to curtail eugenics, Ohio passed a law, H.B. 214, which prohibits any person from purposefully inducing an abortion if the person has knowledge that the pregnant woman is seeking the abortion in whole, or in part, because the unborn child has Down syndrome. A federal district court issued a preliminary injunction which stopped the law from going into effect, and a divided panel of the Sixth Circuit affirmed that ruling. On December 13, the en banc Sixth Circuit vacated the panel’s ruling and agreed to hear the case before the entire court.

Dissenting from the earlier Sixth Circuit panel’s opinion, Judge Batchelder noted how Ohio’s law promotes a compelling interest in preventing abortion from becoming a modern day eugenics tool. She said, “Ohio concluded that permitting physicians to become witting accomplices to the deliberate targeting of Down [s]yndrome babies would undermine the principle that the Down [s]yndrome population is equal in value and dignity to the rest of Ohio’s population, and would do deep damage to the integrity of the medical profession.”

Judge Batchelder is not the only judge to follow Justice Thomas’s lead and talk about the link between abortion and eugenics. Recently, the Fifth Circuit struck down Mississippi’s 15-week abortion ban. While he stated he was bound by Supreme Court precedent to reach this result, Judge Ho, a President Trump appointee, wrote a concurrence in which he noted that abortion is found nowhere in the Constitution, and that “the district court’s claim that it is racist to believe in the sanctity of life is particularly noxious, considering the racial history of abortion advocacy as a tool of the eugenics movement.”

It is encouraging to see appellate judges proclaim the history between abortion and eugenics. This could lead to a more clearly recognized state interest in stopping eugenics in this context, one which could eventually become compelling enough to outweigh a woman’s “right” to privacy. In the interim, we appreciate these judges exposing the history and modern-day link between eugenics and abortion.

Good News for Women and Life: Kentucky’s Ultrasound Law is Here to Stay

by Katherine Beck Johnson

December 11, 2019

On Monday, the Supreme Court denied cert in EMW Women’s Surgical Center v. Meier. By denying cert, the Supreme Court allowed Kentucky’s ultrasound law to stand, as the Sixth Circuit held the law was constitutional this spring.

Referred to as H.B. 2, the law requires an abortion provider, prior to performing an abortion, to perform an ultrasound; display the ultrasound images for the patient; and medically explain the development of the unborn child. In April, the Sixth Circuit upheld Kentucky’s law, holding that because the law “requires the disclosure of truthful, nonmisleading, and relevant information about an abortion, we hold that it does not violate a doctor’s right to free speech under the First Amendment.”

Kentucky is far from alone in regulating ultrasounds prior to an abortion. Twenty-six states have an ultrasound requirement. Fourteen states require abortionists to display and describe an ultrasound image before an abortion. Nine states require that the abortion provider offer the woman an opportunity to view the image. These ultrasound laws allow women to be more informed about the life growing within them, rather than keeping women in the dark. Ultrasound images are powerful tools that illustrate and humanize the life within the woman. Pro-choice advocates claim they are for women’s choice, yet they fight laws that would properly inform women about the very choice they are making.

The appellate courts are still divided on these laws. In January 2012, the Fifth Circuit upheld Texas’s ultrasound law. In Texas, abortion providers are required to show the women an ultrasound and provide a medical explanation of the size of the unborn child along with the development of the child. After April’s ruling in favor of Kentucky’s ultrasound law, the Sixth Circuit now joins the Fifth Circuit. In 2014, the Fourth Circuit struck down North Carolina’s ultrasound law, holding that it violates the free speech of abortion providers. The Supreme Court did not grant cert in that case.

It is a triumph for life that the Sixth Circuit’s opinion was allowed to stand. This is a welcome victory that allows the women in Kentucky to see their children in the womb and understand the medical aspects of the life within her. Women will now be better informed, and there is no doubt that life will be chosen more often thanks to H.B. 2. 

Little Sisters of the Poor Are Once Again Denied Freedom of Conscience

by Katherine Beck Johnson

October 23, 2019

The Little Sisters of the Poor were back in court yet again yesterday, this time losing at the U.S. Court of Appeals for the Ninth Circuit.

Back in 2011, the Department of Health and Human Services (HHS) issued a federal mandate as part of the Affordable Care Act (ACA). The mandate required employers to provide contraceptives, including the week-after pill, free-of-cost in their health insurance plans. HHS offered only a very narrow religious exemption. So narrow, it did not include non-profits—such as the Little Sisters of the Poor, a Catholic order of nuns who assist the impoverished who are at the end of their lives with nowhere else to go. These nuns have dedicated their lives to their faith and to serving the poor. Yet, these women were sued and told that they must violate their conscience by providing contraception through their insurance.

In May 2016, the Supreme Court unanimously overturned lower court rulings against the Little Sisters. The Court said the government should be provided an opportunity “to arrive at an approach going forward that accommodates the petitioners’ religious beliefs.” On May 4, 2017, President Trump issued an executive order that directed the secretaries of federal agencies to consider regulations that would address the conscience-based objections to the ACA’s contraceptive mandate. On November 7, 2018, the federal government complied with the Supreme Court’s ruling and the president’s executive order by issuing a new rule protecting religious liberty. This new rule provided religious ministries, entities, and persons holding sincere religious beliefs with an exemption to the contraceptive and sterilization coverage.

Soon after the rule was issued, states including Pennsylvania and California sued the federal government to ensure that the Little Sisters of the Poor would not be exempted from providing contraception. Even though these states have programs that provide contraceptives to women who want them, these states insist that non-profits, including the Little Sisters, must either be forced to violate their conscience or else cease to exist.  

In July 2019, the Third Circuit ruled against the Little Sisters of the Poor. The Third Circuit claimed that the Women’s Health Amendment to the ACA did not grant the Health Resources and Services Administration (HRSA, a component of HHS) the authority to exempt entities from providing insurance coverage for contraceptive services. On October 22, 2019, the Ninth Circuit issued a similar ruling and affirmed the preliminary injunction. The Ninth Circuit said, “the statute delegates to HRSA the discretion to determine which types of preventative care are covered, but the statute does not delegate to HRSA or any other agency the discretion to exempt who must meet the obligation.” Thus, the Ninth Circuit and the Third Circuit prevented relief for the Little Sisters of the Poor by issuing an injunction and blocking the implementation of a rule that would allow religious protections.

The Supreme Court needs to settle the debate and rule that the government cannot require people and groups to violate their conscience by providing contraceptive services. The Court should uphold the HHS rule, which protects the inherent human right of religious liberty. This liberty promotes the common good and allows society to flourish. The Little Sisters of the Poor certainly promote the common good as they assist the poorest in society. Violating their conscience ought not to be a precondition for the Little Sisters assisting those most in need.

Federal Court Ruling in Texas Is a Big Win for Religious Liberty

by Katherine Beck Johnson

October 16, 2019

An Obama-era regulation went to court recently at a U.S. federal courthouse in Texas. In Franciscan Alliance v. Azar, Judge Reed O’Connor issued an opinion striking down a Health and Human Services (HHS) mandate requiring doctors to perform gender transition procedures. Judge O’Connor held that the Rule violated the Religious Freedom Restoration Act (RFRA).

In May 2016, the federal government, through HHS, issued a mandate that would require a doctor to perform gender transition procedures on any patient, including a child. The Rule required doctors to provide these procedures even if the doctor believed it could harm the patient. In addition, the mandate required virtually all private insurance companies and many employers to cover gender reassignment therapy. If the insurance companies or employers refused, they would face severe penalties and legal action. While HHS exempted Medicare and Medicaid, they expressly prohibited religious exemptions. The Plaintiffs asked the District Court to vacate the Rule and convert its previously entered preliminary injunction to a permanent injunction.

Judge O’Connor held that the Rule violates RFRA. The Rule substantially burdened Plaintiffs’ sincere religious beliefs without a compelling interest. In addition, the Rule expressly prohibits religious exemptions.

The Plaintiffs’ refusal to perform, refer for, or cover transitions or abortions is a sincere religious exercise. In order to follow this sincere religious belief, the mandate requires extensive expenses. The Rule places significant pressure to perform and cover transition and abortion procedures, it forces Plaintiffs to provide the federal government an extremely persuasive justification for their refusal to perform or cover such procedures, and it requires them to remove the categorical exclusion of transitions and abortions. Judge O’Connor found that the Rule makes the practice of religion more expensive in the business context.  

Judge O’Connor ruled that the Defendants did not provide a compelling interest that would justify the burden on religious exercise. Those advocating in favor of the mandate argued that a compelling interest was specified in the preamble to the Rule, which states, “the government has a compelling interest in ensuring that individuals have nondiscriminatory access to health care and health coverage.” Judge O’Connor found that although that could arguably satisfy a categorical application of strict scrutiny, it cannot satisfy RFRA’s “more focused” inquiry. He said that even if those in favor of the mandate had provided a compelling interest, they failed to prove the Rule employs the least restrictive means.

The Rule was vacated (as opposed to a less severe permanent injunction) because it was found to be arbitrary and capricious. The Rule was found to be “contrary to law” under the APA due to its conflict with Title IX, its incorporated statute.

Judge O’Connor’s ruling is a huge win for religious liberty. HHS under President Trump is also working to take strides that further protect religious liberty. In May 2019, HHS proposed bringing its regulations into compliance with those decisions and ensuring that the government did not interfere and require a person to go against their convictions to provide gender transition procedures. The win in Texas coupled with the new rules from HHS provide optimism for the future of religious liberty.

House of Horrors 2: 2,246 Bodies of Unborn Children Shows Need for Fetal Dignity Laws

by Katherine Beck Johnson

September 18, 2019

The horrendous discovery of jars containing thousands of aborted baby body parts at deceased abortionist Dr. Ulrich Klopfer’s home reaffirms the horrors of abortion and underscores the need for laws that provide for the dignity of the unborn.

Klopfer performed over 30,000 abortions in Indiana before his license was suspended in 2016 for various violations. His egregious acts included performing an abortion on a ten-year-old girl who had been raped by her uncle. He then sent the girl back to her family without notifying the authorities. Now it is abundantly clear that his misdeeds didn’t stop there.

After Klopfer’s death, his family discovered medically-preserved remains of 2,246 unborn children in his home. The horror of this discovery strikes at the very core of a fetal dignity law that was passed in Indiana and affirmed by the Supreme Court. Although his license was suspended for other reasons, there appears to be no Illinois state law barring him from harboring the remains of thousands of unborn children in his Illinois home.

In 2016, then-Indiana Governor Mike Pence signed a state law that required the burial or cremation of fetal remains. Designed to honor the human dignity of unborn children in death, the statute specifically prevents the incineration of fetal remains together with surgical byproducts. The law was challenged and eventually made its way up to the Supreme Court, where it was affirmed in Box v. Planned Parenthood. The Court held that the State had a legitimate interest in the proper disposal of fetal remains and that the requirements were rationally related to that legitimate interest, a principle that the Court noted in City of Akron v. Akron Ctr. for Reprod. Health.

Many other states followed Indiana’s example and enacted laws that affirm the dignity of the remains of the unborn. Texas, Iowa, Louisiana, Michigan, Idaho, Arizona, Florida, Arkansas, and Wyoming all passed fetal dignity laws that provide various protections for the remains of the unborn. A number of other states introduced bills that would have provided similar protections but failed to pass them. Such laws refuse to treat the remains of the unborn as mere surgical byproducts, and instead, acknowledge the humanity and life lost with each abortion.

Klopfer’s storage of thousands of baby body parts should shock the conscience of Americans. In Box, Planned Parenthood challenged the Indiana fetal dignity law that would have outlawed Klopfer’s actions, claiming the law was unnecessary and an attack on women’s rights. However, Klopfer’s collection of unborn remains debunks the myth that there is no need for fetal remains laws.

Atrocities from the disgraced abortionist Kermit Gosnell’s infamous House of Horrors and the recent discoveries at Klopfer’s residence highlight the need to regulate the abortion industry in ways that keep women safe and care for the remains of unborn babies. In June, Illinois proudly expanded abortion access when it enacted the Reproductive Health Act. The law is one of the most sweeping pro-abortion laws in the country: it removed restrictions on the abortion industry and required that insurance providers cover abortion procedures. While the Illinois legislature and Governor were proudly lifting many restrictions on the abortion industry, Klopfer was harboring thousands of unborn remains in his Illinois residence. This stark contrast emphasizes precisely why the industry must be strictly regulated.

Had Indiana’s law been in place when Klopfer was performing abortions, he would have been legally required to surrender the remains for burial or cremation within ten business days. He also could have been charged with transporting a fetus out of Indiana as a Class A misdemeanor, as well as intentionally acquiring fetal tissue as a Level 5 felony. Had Indiana’s law been in place when Klopfer was performing abortions, 2,246 unborn babies might have never been stored in a house like some perverted trophies. There is a crucial need for fetal dignity laws to affirm the unborn and prevent people from perpetrating heinous acts like Klopfer’s. It appears Gosnell’s case is no longer as isolated as we once thought, and there must be legal protections to prevent these types of atrocities.

Our laws must protect the most vulnerable in our society. Indiana’s fetal dignity law and similar laws in other states are crucial steps towards recognizing the humanity of the unborn even in death. Dr. Klopfer, Gosnell, and others have shown what the abortion industry is capable of, and they must not be allowed to disgrace the bodies of their unborn victims howsoever they wish.

Katherine Beck Johnson is the Research Fellow for Legal and Policy Studies at Family Research Council.

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