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The March For Life Is Friday, But Battle For Life Will Continue In SCOTUS

Supreme Court
January 22, 2020 is the 47th anniversary of the tragic Roe v. Wade Supreme Court decision that legalized abortion through all nine months of pregnancy and for any reason.

Principled conservatives have been fighting to limit, or better yet overturn, Roe v. Wade for all those forty-seven years, and as hundreds of thousands of prayerful pro-life demonstrators gather in Washington for this year’s March for Life, the Supreme Court has on its docket another important pro-life case.

As our friend Fr. Frank Pavone, National Director of Priests for Life, explained in a column for NewsMax:

…the Justices [will] consider the case June Medical Services LLC vs. Gee. This case asks the Court to uphold Louisiana’s “Unsafe Abortion Protection Act,” which seeks to protect the women of Louisiana by enforcing commonsense health standards at abortion facilities.

The Court will review whether the ruling of the Fifth Circuit Court of Appeals, which upheld Louisiana’s law, conflicts with a 2016 Supreme Court ruling in a separate case, Whole Woman’s Health vs. Hellerstedt.

Both cases concern laws requiring abortionists to have admitting privileges in hospitals near their abortion facilities, so that they can accompany, admit, and care for the women who may have to be hospitalized in case of complications after abortion. In Hellerstedt, decided after the death of Justice Antonin Scalia, the Supreme Court ruled 5-3 that requiring these admitting privileges would make it harder for women in Texas to have an abortion.

Yet the court did not say that hospital admitting privilege laws are per se unconstitutional.

The Louisiana case is almost identical to Hellerstedt but the important difference is that the Fifth Circuit, in considering the differences between Texas and Louisiana, found that the benefits of Louisiana’s “Unsafe Abortion Protection Act” outweighed its burdens. Hence it upheld the law.

In his opinion, Fifth Circuit Judge Jerry Smith wrote that “the admitting privileges requirement performs a real, and previously unaddressed, credentialing function that promotes the well-being of women seeking abortion.”

The well-being of women seeking abortion is also at the heart of a “Friend of the Court” brief filed for Priests for Life on Dec. 27, 2019, by the American Freedom Law Center.

Amy Howe, writing for scotusblog.com observed that four years ago, the justices struck down Hellerstedt by a vote of 5-3. But the court has changed since then: Justice Anthony Kennedy, who joined his more liberal colleagues in voting to invalidate the Texas law, retired in 2018 and was replaced by Justice Brett Kavanaugh, while Justice Neil Gorsuch filled the empty seat created by the death of Justice Antonin Scalia. However, last year it was Chief Justice John Roberts, a dissenter in 2016, who provided the fifth vote to temporarily block Louisiana from enforcing the law.

While there are many somewhat arcane matters that may affect the outcome of the case, Ms. Howe says that as a “threshold matter,” the Trump administration told the justices that they do not need to reach the merits of the abortion providers’ challenge at all, because the providers lack a legal right to sue, known as “standing.”

As a general matter, noted Ms. Howe, a plaintiff can only file a lawsuit to protect his own rights, rather than the rights of others. Abortion providers don’t have a right to perform abortions, the Trump administration observed, and are therefore relying on the right of their patients to obtain an abortion.

On January 2, 2020 the Trump administration weighed in, in a “friend of the court” brief in which it urged the justices either to throw the case out because the plaintiffs lacked standing or, alternatively, to allow the admitting-privileges requirement to stand. And if necessary, the Trump lawyers told the justices, the Supreme Court should overrule its 2016 decision in the Texas case, Whole Woman’s Health v. Hellerstedt, in which the Obama administration had argued in support of the abortion providers.

According to Ms. Howe’s analysis, it is the Trump administration’s position that if the justices believe that the abortion providers do have a right to sue, the government continues, the Supreme Court should uphold the decision of the U.S. Court of Appeals for the 5th Circuit and allow Louisiana to enforce the admitting-privileges requirement, because the law is constitutional. The Supreme Court’s 1992 decision in Planned Parenthood v. Casey made clear that the central question before the court in this case is whether the abortion providers have shown that the admitting-privileges requirement will create a “substantial obstacle” for Louisiana women who want an abortion; the 5th Circuit “correctly” ruled that they had not, the government wrote, and the abortion providers don’t argue otherwise.

As evidence of the importance President Trump attaches to this matter, U.S. Solicitor General Noel Francisco filed a motion to participate in the oral argument in March. Lawyers for the state, he informed the justices, have agreed to give the Trump administration 10 of their 30 minutes of argument time.

You can learn more about June Medical Services LLC vs. Gee through this link to scotusblog.com. And please call the White House at 202-456-1111 to thank President Trump for standing for life.

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