Author archives: Katherine Beck Johnson

Explainer: What Is Happening with Texas’ New Pro-Life Law?

by Katherine Beck Johnson

September 2, 2021

Roe v. Wade resulted from a challenge to a pro-life Texas law. Forty-eight years later, Texas is once again protecting life—but this time, so far, the U.S. Supreme Court has let those protections stand. Texas recently passed a law (known as Senate Bill 8) that restricts abortion after a heartbeat has been detected in the unborn child. This usually occurs around six weeks. It’s a strong law that protects the most vulnerable. Texas passed the law in the spring, and Governor Abbott signed it in May, days after the U.S. Supreme Court granted cert in the abortion case Dobbs v. Jackson Women’s Health.

Planned Parenthood and other abortion businesses petitioned the U.S. Supreme Court for an emergency injunction that would prevent the Texas law from going into effect. In past abortion cases, such as June Medical v. Russo (June Medical v. Gee at the time), the Court has stepped in before the pro-life bill took effect and blocked it. Texas had until 5 p.m. on Tuesday, August 31, to respond to Planned Parenthood’s emergency injunction request. Texas responded by saying that Planned Parenthood had no standing to bring the case. That is, they had no right to sue. Many stayed up until midnight on the evening of August 31 to see if the bill would go into effect or whether it would be blocked before it was set to become law on September 1. The Court did not issue any ruling as of midnight, so Texas has officially become the first state to successfully outlaw abortion past six weeks.

What’s different about the Texas law? It is enforced differently than most pro-life laws. Usually, if someone is challenging a state law, the state officials are the defendants. The Texas law actually bars state actors from enforcing it and instead allows private citizens to sue anyone who carries out an abortion procedure or anyone who “aids or abets” one. In theory, an abortionist will violate this law and then be sued by a private citizen. Women cannot be sued for attempting to obtain an abortion. But abortionists, clinic workers, and people who offer to pay for an abortion are just a few examples of parties who could be held legally liable for aiding an abortion.

As of right now, abortion is illegal in Texas after six weeks—for the first time since Roe v. Wade. Indeed, this is the first time in 48 years that the unborn have been protected anywhere in America starting at six weeks. This is reason for great hope and reminds us that one day, elective abortion could be illegal in America. The U.S. Supreme Court is still expected to give an answer on this law, so we will stay tuned to how they rule. But for now, lives are being saved in Texas. Abortion appointments scheduled for today are being canceled, and there will be a larger need for the pro-life community in Texas to help even more women who find themselves in unplanned pregnancies.

This is a beautiful and victorious moment in our country. We celebrate the lives saved thanks to the courage and boldness of the Lone Star State.

UPDATE: In a 5-4 decision, the U.S. Supreme Court has ruled that the Texas law can remain in effect. Justices Alito, Thomas, Gorsuch, Barrett, and Kavanaugh have allowed the Texas law to remain enforceable, while Justices Roberts, Breyer, Kagan, and Sotomayor would have stayed the law. The majority did not rule on the substance of the law but rather sided with what Texas had argued: it’s unclear whether the named defendants can or will seek to enforce the Texas statute. For example, Planned Parenthood named a pro-life advocate as a defendant because they believe he is likely to enforce the statute. The Court rightly rejected this argument. The minority would have blocked the law while litigation took place below. Thankfully, they fell one vote short of a majority.

This means that while litigation continues regarding the Texas heartbeat ban on the merits, Texas will remain essentially abortion-free. A brilliant litigation strategy has led to many abortion appointments being canceled and lives saved. It’s a beautiful opportunity to show the country how valuing and supporting life should become the norm in every state. The unborn in Texas live another day, and that is a historic and beautiful victory.

Mississippi Boldly Leads the Fight to Overrule Roe

by Katherine Beck Johnson

July 27, 2021

Mississippi’s brief in the Dobbs v. Jackson Women’s Health abortion case is the latest example of a recently emboldened pro-life movement. All eyes were on Mississippi Attorney General Lynn Fitch last week, waiting to see how she would defend her state’s 15-week abortion ban. Would Fitch be bold and mention that Roe and Casey should be overturned? Or would she try to convince the Court that the 15-week ban could be upheld under Casey?

Fitch and Scott Stewart, Mississippi’s solicitor general, exceeded all expectations when they boldly and brilliantly led the fight against Roe and Casey. Their brief convincingly explained the damage the Court’s two most deadly decisions have inflicted on our nation and demanded that the Court overturn them. “Nowhere else in the law does a right of privacy or right to make personal decisions provide a right to destroy a human life.” Mississippi’s brief called out Roe for what it is: wrong. No matter how strong of an interest women have in their own privacy, this does not extend to a right to end the life of an innocent child.

The brief’s introduction made it clear that Mississippi would be bold and aggressive in its defense of the unborn. “…[N]othing in constitutional text, structure, history, or tradition supports a right to abortion.” The brief went on to discuss the damage inflicted on our country as a result of the judicial activism of the seven male justices who decided Roe. Mississippi did not shy away from humanizing the child in the womb:

The Court could hold that the State’s interests in protecting unborn life, women’s health, and the medical profession’s integrity are, at a minimum, compelling at 15 weeks’ gestation—when risks to women have increased considerably; when the child’s basic physiological functions are all present, his or her vital organs are functioning, and he or she can open and close fingers, make sucking motions, and sense stimuli from outside the womb; and thus when a doctor would be extinguishing a life that has clearly taken on the human form.

Mississippi reminded the Court that states are willing and should be able to protect the most vulnerable among us. Some pressured Mississippi to take a more timid approach and not ask for much, but Mississippi did the right thing by being bold. No other fight for basic human rights, such as the civil rights movement, was shy in their requests for equal rights. Thurgood Marshall was bold in his requests before the Court in Brown v. Board of Education, and now Mississippi stands boldly before the Court in its request for the state’s ability to protect the most basic right—the right to life—for the unborn. The Court did the right thing in Brown, and it should do the right thing in Dobbs.

The conclusion of the brief summarizes the harm done by judicial activism in creating a right to abortion:

The goal of constitutional adjudication is to hold true the balance between that which the Constitution puts beyond the reach of the democratic process and that which it does not.” Webster, 492 U.S. at 521 (opinion of Rehnquist, C.J.). Roe and Casey—and a viability rule—do not meet that goal. And they never can. Retaining them harms the Constitution, the country, and this Court. This Court should… overrule Roe and Casey.

Mississippi did the right thing. Now it’s the U.S. Supreme Court’s turn to do the right thing. No justice will be able to feign ignorance regarding Mississippi’s glaring request. No justice can claim that Mississippi didn’t ask for Roe to be overturned. It is time for Americans to see the true colors of every justice sitting on the Court. Dobbs is the case that should overturn Roe. If it isn’t overturned, it won’t be because Mississippi didn’t do the best job it could. There is no excuse for Roe not to be overturned now.

The Supreme Court Protects Religious Liberty—Barely

by Katherine Beck Johnson

June 17, 2021

Catholic Social Services’ (CSS) 9-0 victory before the Supreme Court today in Fulton v. City of Philadelphia, while unanimous, can’t be allowed to overshadow serious differences among the justices on how to approach religious liberty.

This case involved CSS’s ability to operate in accordance with their Catholic faith. The City of Philadelphia had pressured CSS to either give up the Church’s teaching on marriage and family or give up their ministry of finding children loving homes. CSS refused to go against its strongly-held religious belief that marriage is between a man and a woman. After years of litigation, the Supreme Court today held that Philadelphia violated the First Amendment by allowing secular but not religious exceptions to their fostering contracts, like the one held by CSS.

To be clear, this decision was a win. For now, CSS will be able to operate in accordance with its religious beliefs and continue placing children in most need. The organization will not be forced to shut its doors because it refuses to compromise its faith.

Unfortunately, the win was narrow, coming up short of a huge victory. The Supreme Court did the bare minimum to protect CSS and other faith adherents. It was only because Philadelphia had other exceptions, but not religious ones, that the Court found the city in violation of the First Amendment. As Justice Alito noted in his concurrence, the secular exceptions were essentially boilerplate language in the city’s contract that they did not enforce and will be very easy for them to delete—effectively leaving CSS with no protection. As Justice Alito said, “[t]his decision might as well be written on the dissolving paper sold in magic shops.”

The Court should have overturned Employment Division v. Smith, which held that a law is constitutional as long as it is generally applicable and does not target religion. Smith was wrong when it was decided, and it is wrong today. Justice Gorsuch was correct when he said, “[o]ne way or another, the majority seems determined to declare there is no “need” or “reason” to revisit Smith today. But tell that to CSS. Its litigation has already lasted years—and today’s (ir)resolution promises more of the same.”

The ever-growing demands from the Left and their radical gender ideology being imposed on more and more of America make it increasingly impossible for a person to live out their Christian faith while operating in the foster care and adoption space (or many other aspects of society). Evidently, the City of Philadelphia would rather children languish in the system without loving homes than allow CSS to operate in accordance with its faith. Catholics in Philadelphia and throughout our country deserve better than that—and are afforded more than that in our Constitution.

Although today’s opinion allows CSS to continue operating without compromising its faith, that likely won’t be the case for long. Soon, the Court will have to answer if a city can force a religious agency to violate its beliefs if no secular exceptions were provided. The answer is no, and that should have been the answer today. Justices Roberts, Barrett, Kavanaugh, Breyer, Sotomayor, and Kagan refused to answer this.

Today, Justices Alito, Thomas, and Gorsuch were the only members of the nation’s highest court who demonstrated awareness of the pressing need to revisit Smith and rightly protect religious adherents. Let us hope more justices join them in the future.

Texas Takes a Stand for Religious Belief

by Katherine Beck Johnson

April 28, 2021

Liberal states have been attempting to demand total adherence to their ideology for a while now. The Left is no longer interested in co-existing, but rather in demanding every person adheres to their views on sexuality and marriage. The latest target? Texas. But California should know better than to mess with Texas. The Lone Star State is fighting back.

This case arose from the following string of events: California banned state-funded or state-sponsored travel to Texas. Why? Because Texas respects the religious beliefs of those who believe marriage is between a man and a woman and that a mother and father is best for children. Texas acknowledges the religious freedom of faith-based child welfare providers within its own border. California is so bothered by Texas allowing its own citizens to freely live out their faith that they have decided that nobody can travel there if their travel is being sponsored by the state. It’s unclear if California would allow any state-funded travel to China, where an actual genocide is occurring. Yet, California is taking a hard stance again Christians living out their faith in Texas.

Texas went straight to the Supreme Court to file a complaint against California’s unconstitutional action. Texas was not alone, as 19 other states joined an amicus in support of Texas standing up to the demands of the woke. While the Supreme Court denied what is known as a “bill of complaint” earlier this week, Texas did not fully lose the case. The Court’s denial simply means that Texas needs to go through the lower courts first, as the Supreme Court did not have the proper jurisdiction at the moment—a point with which Justices Alito and Thomas disagreed. No justice commented on the merits of the case, but Alito and Thomas would have accepted the case without it working its way through lower courts.

For now, Texas lives to fight on another day, and we can expect to see this case and the issue it deals with arise again in the future.

Despite Roe Polling, a Majority of Americans Support Stronger Abortion Restrictions

by Laura Grossberndt , Katherine Beck Johnson , Ruth Moreno

October 23, 2020

Opinion polls reveal some cognitive dissonance in Americans’ minds concerning abortion laws. Although most Americans say they support Roe v. Wade, the 1973 Supreme Court decision that legalized abortion nationwide, most also favor significant abortion restrictions. Why the seeming inconsistency?

First, some background. In Roe, the Supreme Court ruled that abortion is protected under the U.S. Constitution. This decision struck down many state laws that had restricted abortion. It also severely limited the extent to which states could write their own abortion laws. The Court correlated the permissibility of different kinds of abortions to the three trimesters of pregnancy:

  • First trimester: States cannot restrict abortion.
  • Second trimester: Regulations designed to protect a pregnant woman’s health, but not to further a state’s interest in potential life, are permitted.
  • Third trimester: States can completely outlaw abortion, except when “necessary to preserve the life or health of the mother.”

Under Roe, no restrictions on abortion in the second or third trimesters are mandated and are forbidden in the first trimester. Therefore, abortion through all nine months of pregnancy is the default unless Congress or the individual states pass laws restricting it.

Planned Parenthood v. Casey did away with Roe’s trimester framework and created a new rule: a state cannot impose an “undue burden” on a woman’s attempt to obtain an abortion pre-viability.

National polls indicate strong support for Roe. Sixty percent (Gallup) and 66 percent (NBC News) of Americans support it, while only 29 percent of Americans favor overturning it (NBC News). Roe, then, appears to be a settled court case in the minds of the American people.

However, polls indicate a greater variation in Americans’ opinions when it comes to abortion itself. Only 27 percent of Americans think abortion should be legal “in all cases” (ABC News by Langer Research Associates), and seven in 10 Americans would like to see abortion limited to the first three months of pregnancy at most (Knights of Columbus and Marist). The latter poll found that 52 percent of Americans think women should be required to see an ultrasound of her unborn child prior to receiving an abortion. Furthermore, the poll found that 80 percent of Americans think laws can protect both a mother and her unborn child.

A mere 18 percent of Americans support the legalization of abortion up until birth (NPR and Marist), and 54 percent want to see more restrictions on abortion than there currently are (CBS). Sixty-five percent of Americans support a required 24-hour waiting period for an abortion (The Kaiser Family Foundation). Like the Knights of Columbus and Marist poll, the Kaiser poll found that 52 percent support a mandatory ultrasound viewing by mothers.

Why this seeming inconsistency between the American public’s opinions on Roe and abortion itself? Tim Carney of the American Enterprise Institute posits an answer: a poll’s outcome depends on how the survey questions are asked. Many Americans are unaware of what Roe actually says about abortion, mistakenly believing that it only protects abortion through the first few months of pregnancy. When asked whether they would like to see Roe overturned, most Americans say no, because most Americans are neither entirely pro-life nor pro-choice. Instead, most Americans favor abortion laws that restrict most abortions but provide exceptions for early-term abortions, abortions in cases of rape or incest, or when the mother’s health or life is in grave danger.

Roe v. Wade permits abortion in far more circumstances than these. If survey respondents knew that Roe essentially allows abortion in all cases at any stage in pregnancy up to the moment of birth, support for the court decision would probably plummet among Americans with more moderate views. Americans’ ignorance serves the pro-choice lobby and is likely why polls indicate public support for Roe.

As long as the largely pro-choice mainstream media can convince moderates that Roe v. Wade aligns with their beliefs, the Supreme Court will feel pressured into upholding its 1973 decision despite the fact that it goes against the will of the American people.

To see where your state stacks up on permitting later-term abortion under Roe, see our state-by-state pro-life map.

The Strange Cognitive Dissonance of the Democrats on Life

by Katherine Beck Johnson

October 15, 2020

The final day of Judge Amy Coney Barrett’s confirmation hearing consisted of witnesses. The Republican and Democratic senators of the Senate Judiciary Committee each called upon individuals who expressed their personal opinions on why or why not Barrett should be confirmed to the Supreme Court.

The Republicans called upon former clerks, students, and colleagues of Judge Barrett. Each spoke highly of Barrett’s intellect, compassion, and legal skills. In contrast, the Democratic witnesses all opined on the danger they thought a Justice Barrett would pose to the country.

One of the Democratic witnesses, Crystal Good, described herself as a “reproductive rights advocate.” She spoke about her experience being pregnant as a 16-year-old and going to court to obtain an abortion without parental consent. Sadly, Good claimed that killing her unborn child allowed her to take control of her life. She went on to say that Barrett’s confirmation would prevent abortions that millions of women rely on each year.

The next witness the Democrats called was Stacy Staggs, a mother of twins born prematurely. The larger twin weighed just two pounds at birth, while the smaller twin was under two pounds. The twin girls spent time in the neonatal intensive care unit (NICU), and Staggs was unable to hold her daughters for weeks. In her testimony, Staggs spoke about the necessity of her children being provided health care. She alleged a Justice Barrett would take away the necessary health care that saved her children’s lives.

Are the Democrats aware of the cognitive dissonance these two testimonies create? One witness asserted that she should have the right to end her unborn child’s life. The subsequent witness detailed how she fought for the lives of her premature children. One witness denied the humanity of the unborn, while the subsequent witness acknowledged the humanity of these precious little lives. This cognitive dissonance should not be surprising. Democrats claim to care about the health and wellbeing of children. However, in addition to supporting the termination of life in the womb, Democrats in Congress have repeatedly blocked legislation that would ensure medical care to children born alive after a failed abortion. It’s clear that the Democrats only value life when that life is wanted.

A child’s right to life should not depend on whether the parents want him or her. Life is an inherent human right. The aforementioned testimonies at the confirmation of Judge Amy Coney Barrett demonstrate that Democrats only want to protect the right to life of children who are wanted. This picking and choosing which children “deserve” life must end.

Roe Isn’t Super … or Super-Precedent

by Katherine Beck Johnson

October 13, 2020

In the second day of Judge Amy Coney Barrett’s Senate confirmation hearing, many members of the Senate Judiciary Committee, particularly Sen. Amy Klobuchar (D-Minn.), questioned the Supreme Court nominee about the concept of “super-precedent.” Barrett has previously written that seven cases are currently understood by legal academics as super-precedent, including Brown v. Board of Education. She defined super-precedent as “cases that no justice would overrule, even if she disagrees with the interpretative premises from which the precedent proceeds.” Barrett said at the hearing that, according to this definition, Roe v. Wade does not qualify as super-precedent.

When asked why Brown is super-precedent and Roe is not, Barrett explained that Brown is super-precedent because the Supreme Court decided that the “separate but equal doctrine” is unconstitutional and because the American people have accepted the Court’s decision as settled law. Segregation is a horrible stain on our nation’s history. Thankfully, it is now accepted that racism and segregation is a moral evil that will no longer be tolerated in our country. Because there are no legal challenges advocating for segregation, Brown is clearly settled law.

Barrett said Roe does not qualify as super-precedent because the American people have not accepted this Supreme Court decision that legalized abortion in all 50 states. She is right. Many American people believe abortion is a moral evil that should not be tolerated in our country. The Republican Party platform supports a human life amendment to the Constitution clarifying that the unborn are protected by the 14th Amendment. The March for Life, which draws hundreds of thousands of people from all over the country, takes place every January in Washington, D.C. on the anniversary of Roe.  

Quite significantly, a number of states have passed strong pro-life laws in recent years, and there are also numerous lawsuits currently challenging abortion.

Last year, Alabama passed a comprehensive law affirming and protecting human life at all stages—a model for how to fully protect life. States have defunded abortion and abortionists. Other states like Colorado are proposing ballot measures to protect life this fall. Certain states like Nebraska have passed dismemberment bans, and others have passed laws protecting the dignity of the remains of the unborn. Arkansas, Georgia, Iowa, Kentucky, Louisiana, Mississippi, and Ohio have all passed heartbeat bills. These bills seek to prohibit abortion when a heartbeat can be detected, which can be as early as six weeks into pregnancy. States have passed laws that aim to protect the targeting of children with Down syndrome in the womb or other special needs. States have passed laws protecting children from being aborted simply because of their race or gender. The eugenic act of ending children’s lives based on their identity is another reason why many Americans refuse to accept Roe as settled law.

By contrast, no major party has a platform advocating for segregation. No states are calling for segregation to be legalized. There is no annual march in support of segregation. The notion of “separate but equal” is viewed by Americans as being unconstitutional. Therefore, Brown deserves to be deemed super-precedent.

While our country has overcome the evil of segregation, the stain of abortion is still with us. Many Americans long for a day when abortion’s unconstitutionality is settled law, and the most vulnerable among us are protected under the law. Until that day, we will continue to fight for the unborn to have the right to life. As long as Americans refuse to accept it, Roe will remain unsettled law that does not deserve to be considered super-precedent. Judge Amy Coney Barrett is correct when she says Roe v. Wade is not super-precedent.

The Court for the Common Good?

by Katherine Beck Johnson , Arielle Leake

July 6, 2020

The recent ruling in Bostock v. Clayton County has once again brought the judiciary’s role to the forefront of public discussion. As Justice Alito pointed out in his dissent, what the Court did in Bostock was legislate. By redefining sex to mean “sexual orientation” and “gender identity,” they changed the meaning and application of the 1964 Civil Rights Act without Congress even lifting a finger. However, this is not the first time that the Court has overstepped its bounds as the independent judiciary. In Obergefell v. Hodges, the Court took it upon itself to redefine “marriage.” In Roe v. Wade, they essentially created a “constitutional right” to have an abortion.

What is the proper role of the courts? President Reagan summed it up well in his speech at Justice Anthony Kennedy’s swearing-in:

The role assigned to judges in our system was to interpret the Constitution and lesser laws, not to make them. It was to protect the integrity of the Constitution, not to add to it or subtract from it—certainly not to rewrite it. For as the framers knew, unless judges are bound by the text of the Constitution, we will, in fact, no longer have a government of laws, but of men and women who are judges. And if that happens, the words of the documents that we think govern us will be just masks for the personal and capricious rule of a small elite.

Each of the three federal branches is equal, independent, and tasked with fulfilling its role under the Constitution. According to Article III of the Constitution, the judicial branch’s role is to interpret and apply the “Constitution, the laws of the United States and treatises made, or which shall be made, under their authority.” The Court checks the other two branches through judicial review. However, its primary function—as the Framers intended and as evidenced by the Constitution, The Federalist Papers, and other documents from that time—is to act as the federal government’s enforcement arm by applying the laws. It is not the job of unelected judges to make laws or change laws, as they have done in Bostock, Roe, and Obergefell. Instead, they are charged with basing their judgments on the objective meaning of laws and the Constitution.

Originalism and textualism are usual tools of judicial interpretation supported by many conservatives. However, there is a new theory beginning to emerge. The theory was proposed by Adrian Vermeule, a conservative professor of constitutional law at Harvard, and has been labeled “common-good constitutionalism.” He describes this approach as being “based on the principles that government helps direct persons, associations, and society generally toward the common good.” He advocates for reading into the “majestic generalities and ambiguities” of the Constitution, principles that advance the “common good.” Rather than focusing on the individual, he says the focus would be on a “powerful presidency ruling over a powerful bureaucracy” that will advance society’s needs as a whole, even if it overrides an individual’s private rights. Vermeule says originalism has served its purpose, and now conservatives should begin advocating this “authoritative rule for the common good” to guarantee that ideas such as life, family, and natural marriage are elevated and promoted in society. He says this view has a basis in the Constitution, but instead of being wedded to the original meaning, judges and other government officials will read morality into the text.

It is important to think about all of the implications of various judicial philosophies. While common-good constitutionalism has not become mainstream yet, it is beginning to pick up followers in conservative legal thought—especially after Justice Gorsuch’s disappointing holding in Bostock. Yet, many staunch originalists and textualists have fought back against Professor Vermeule’s theory, arguing that a judge must always remain neutral. It is too soon to know whether a new era in conservative judicial interpretation has arrived.

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

Arielle Leake is a Policy & Government Affairs intern at Family Research Council.

A Loss for Women and Children at the Supreme Court

by Katherine Beck Johnson

July 1, 2020

Earlier this week, the Supreme Court issued its much-anticipated ruling in June Medical Services v. Russo, the first major abortion case the Court has taken up since President Trump appointed Justices Gorsuch and Kavanaugh. The Court’s ruling struck down Louisiana’s law requiring abortionists to have hospital admitting privileges. While Justices Gorsuch and Kavanaugh were both in the dissent, Justice Roberts proved to be the disappointing fifth vote that struck down the common-sense law.

Louisiana’s admitting privileges law was in the best interest of women. If something were to go awry during an abortion, the abortionist would be able to get the woman admitted to the hospital and explain to her doctors precisely what had occurred. If the abortionist does not have admitting privileges, the woman might be forced to call an ambulance and explain what had happened herself—a heavy burden to place on the woman, and quite impossible if she is unconscious. Requiring admitting privileges is a common-sense regulation that applies to every other outpatient surgical center in Louisiana. Nevertheless, liberal justices and Justice Roberts were unwilling to uphold the requirement when applied to abortion clinics.

In a previously decided case, Whole Woman’s Health v. Hellerstedt, Texas’s admitting privileges law and a few other abortion regulations had been at issue. The Court held that Texas’ law created an undue burden. Justice Kennedy provided the decisive fifth vote that struck down the pro-life and pro-woman law. Justice Roberts dissented.  

Whole Woman’s was a poorly decided case that needed to be overturned. The Court had the chance to overturn it in June Medical with Justice Kennedy off the Court and two new Republican-appointed justices. Instead, once again, the Court struck down a law aimed at saving unborn lives and protecting women’s health.  

Justice Roberts dissented in Whole Woman’s, yet he voted with the liberal justices in June Medical to strike down Louisiana’s admitting privileges law. Interestingly, in his concurrence, Justice Roberts said that he still agrees that Whole Woman’s Health was wrongly decided, yet said he is bound by stare decisis to uphold the law. Stare decisis is a legal principle that means you decide a case bound by precedent, regardless of whether the precedent is correct. Roberts claims that “for precedent to mean anything, the doctrine must give way only to a rationale that goes beyond whether the case was decided correctly.” Yet, Roberts has not felt bound by stare decisis in plenty of his other opinions, including Citizens United v. FEC. When it comes to abortion, however, Justice Roberts suddenly feels his hands are tied. Regardless, if a legal precedent is wrong, he and the Supreme Court should do the right thing and overturn it. With women and children’s lives on the line, Justice Roberts chose to adhere to a precedent he acknowledges is wrong.

Justice Roberts’ adherence to stare decisis is problematic for the future of abortion law at the Supreme Court. If Justice Roberts thought adhering to a five-year-old precedent of knocking down hospital admitting privileges is so embedded in our country’s jurisprudence to deserve stare decisis, he almost certainly views Roe v. Wade and Casey v. Planned Parenthood as deserving of stare decisis, even if he disagrees with the opinions. This indicates that while judicial nominees are extremely important, they can be unreliable. It is no longer enough for the pro-life movement to depend on Republican-appointed justices and hope they will do the right thing on abortion.

Women and children lost at the Supreme Court on Monday. The abortion industry won. Once again, abortionists proved that rules don’t apply to them; they are exempt from laws. Despite this disappointing loss, the pro-life movement should not lose hope or remain discouraged. The fight for civil rights will continue—with or without Justice Roberts on our side.

Supreme Court Abandons Human Dignity in Russo but Upholds It in Open Society

by Katherine Beck Johnson , Kaitlyn Shepherd

June 30, 2020

The disappointing decision in June Medical v. Russo dominated the airwaves yesterday. However, there was a win for human dignity in another Supreme Court case. In Agency for International Development v. Alliance for Open Society International, Inc., the Court held that the Leadership Act’s Policy Requirement—which requires organizations receiving federal funds to combat HIV/AIDS to adopt a policy explicitly opposing prostitution and sex trafficking—is constitutional as applied to domestic organizations’ foreign affiliates. We applaud the Court’s decision. The Leadership Act’s Policy Requirement is a common-sense measure that promotes the human dignity of all people and especially women, who are most frequently the victims of prostitution and sex trafficking.

In 2003, congressional findings indicated that HIV/AIDS had “assumed pandemic proportions.” Data showed that, since the 1980s, the disease had killed more than 25 million people, infected an additional 40 million people, and orphaned an estimated 14 million children worldwide. In response, the United States Leadership Against HIV/AIDS, Tuberculosis, and Malaria Act of 2003 (the Leadership Act) “outlined a comprehensive strategy to combat the spread of HIV/AIDS around the world.” As part of this strategy, the Act prescribed efforts “to address the social and behavioral causes of the problem” and authorized the president to allocate funds to organizations that combat HIV/AIDS overseas. With a few exceptions, only organizations that adopted “a policy explicitly opposing prostitution and sex trafficking” were eligible to receive funds.

In 2005, a group of United States-based organizations challenged the Policy Requirement. They argued that “adopting a policy explicitly opposing prostitution may alienate certain host governments, and may diminish the effectiveness of some of their programs by making it more difficult to work with prostitutes in the fight against HIV/AIDS.” Some organizations on the left, joined by some libertarians, advocate for the legalization of prostitution (which they call “sex work”), ostensibly to allow government regulation of health and safety. They argue that a distinction can be made between “sex work” and “sex trafficking” and believe that legalization would help to empower “sex workers.” Prostitution is inherently degrading to women, and there is no evidence that its legalization makes this practice less exploitative. When it comes to fighting HIV/AIDS, discouraging a “profession” that inherently involves the high-risk behavior of sexual relations with multiple partners should be part of our national strategy. Congress held this view, and insisted that U.S. aid recipients overseas do the same.

In 2013, the Supreme Court held that the Policy Requirement was unconstitutional as applied to American organizations operating overseas because it compelled these organizations to adopt the government’s stance on prostitution and sex trafficking as a condition of receiving the funds.

In 2015, the organizations renewed their challenge to the Policy Requirement. They opposed the government’s continued application of the Policy Requirement to their “closely aligned” foreign affiliates, organizations that shared the same “name, logo, brand, and mission” but were legally separate entities incorporated under the laws of other nations. The Second Circuit Court of Appeals struck down the Policy.

In its decision yesterday, the Supreme Court reversed the decision of the Second Circuit. Writing for the majority, Justice Kavanaugh noted that long-standing principles of American law compel the conclusion that “[a]s foreign organizations operating abroad, plaintiff’s foreign affiliates possess no rights under the First Amendment.” President Trump’s other appointee, Justice Gorsuch, also joined the majority. The Court was unpersuaded by the organizations’ argument that the speech of their foreign affiliates would be misattributed to them because the organizations were not compelled by the government to affiliate with these foreign organizations or to espouse their message. Any misattribution would be a result of their own actions, not those of the government.

The Court’s decision has important implications for human dignity. The Bible teaches that both men and women are created in the image of God and that each person is “fearfully and wonderfully made.” This means all people possess inherent dignity, worth, and value. By objectifying women, the sex trafficking industry fails to acknowledge the human dignity of women. Congress itself recognized this, stating that “[p]rostitution and other sexual victimization are degrading to women and children and it should be the policy of the United States to eradicate such practices.” The Court’s decision yesterday should be celebrated because requiring organizations to adopt a policy explicitly opposing prostitution and sex trafficking promotes the dignity of all people around the world. 

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

Kaitlyn Shepherd is a legal intern with Policy & Government Affairs at Family Research Council.

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