On the final day of its term, the Supreme Court issued the first decision on the alleged right to abortion in many years. The court ruled squarely in favor of the proposition that the U.S. Constitution provides a right to abortion; indeed the court prioritized that “right” over the demands of the rule of law and of constitutional government.
The law challenged in the case required facilities that provide abortions to maintain the health standards that apply to other outpatient facilities and to have admitting privileges to hospitals within 30 miles of the facility in case a woman submitting to an abortion needed emergency medical treatment.
Five of the eight justices determined that the health benefits the law might provide were outweighed by the need to ensure that the clinics could provide abortions without an “undue burden.” The phrase is not from the Constitution, but from a 1992 opinion written by three Supreme Court justices, which famously concluded that states could not act to protect unborn children lest doing so would infringe on the “the right to define one’s own concept of existence, of meaning, of the universe, and of the mystery of human life.”
The core principles of such a rule is obvious – judicial supremacy in service of the sexual revolution. Who decides if the “burden” on the abortion “right” is undue? The court, of course. The elected representatives of the people of Texas had determined that the burden was justifiable. The Supreme Court disagreed, substituting its assessment of the medical realities for those of the authorities (state legislators) to whom it was assigned by the Constitution.
It is not merely an assertion of judicial supremacy. At other times, the court can be slavishly deferential to other branches of government (such as by offering a contorted reading of the Affordable Care Act to keep the law alive).
The reality is that the court treats the issue of abortion differently. As Justice Clarence Thomas pointed out in his cogent dissent, the court bent legal rules, logical principles, and previous precedent to reach this result. It is not a product of normal legal reasoning; rather, the result compels the majority’s analysis.
The pithiest characterization of the decision came from Kevin Williamson at National Review, who called what the court was doing “Calvinball” after the “make-it-up-as-you-go game” from the comic strip Calvin and Hobbes:
There is no right to abortion in the Constitution. It’s “there” because Harry Blackmun wanted it to be there, and made it up, and got a few other men to agree with them. You can agitate against it, elect state and local legislators opposed to it, build large majorities in favor of at least regulating it, and pass laws policing it that would, in practically any other circumstance, be treated as ordinary exercises in legislation. But when it comes to abortion, you can’t. You have no political recourse. You have the fiat of a few mystics in black robes who simply decree that it must be thus, and then offer some Calvinball justification for it. That isn’t just wrong, but illegitimate. And it isn’t a legal dispute, but an exercise in brute political force. It should be understood that way.
The decision is tragic and disheartening, and unworthy of a noble institution.