Pro-lifers should give up on the Supreme Court
In the dead of winter every year thousands of pro-lifers throng the streets of downtown Washington, D.C. making a public statement on behalf of life. Converging on the Mall for speeches in the shadow of the Washington Monument and the White House, they march up one of the capital city’s broad avenues to the marble palace that houses the Supreme Court.
It is not recorded that the Justices take any notice of their pro-life visitors. None of them has ever stood on the steps and addressed the March for Life. On the evidence, the Supreme Court today remains the bastion of pro-choice support that it’s been since the day in January 1973 when it abruptly and with no visible precedent legalized permissive abortion throughout the United States.
If there was any doubt about where the Court stands, it disappeared last day of the Court’s recently concluded term. It voted 5-3 to overturn portions of a Texas law setting standards for abortion clinics, including physical conditions comparable to surgical centers and hospital admitting privileges for doctors who do abortions.
Justice Stephen Breyer, writing for the majority, argued the requirements “place a substantial obstacle in the path” of women seeking abortions. Similar provisions in other states also presumably fail to meet the Supreme Court’s “substantial obstacle” test. Pro-life Americans might reasonably say the Court is a substantial obstacle to regulating the performance of abortion.
In one sense, the solution to that problem is obvious: Replace two of the pro-choice justices with pro-life ones. If elected president, Hillary Clinton certainly won’t do that. Donald Trump has said he would, and has issued a list of names from among which he would make his selection. But there are two problems with that: First, Trump needs to get elected, after which he must get two shots at filling Supreme Court vacancies that don’t presently exist and have them confirmed by the Senate. There’s no certainty any of those things will happen.
This points to an unpleasant but necessary conclusion: It would be self-defeating to go on sending abortion-restricting laws to the Supreme Court as long as it’s virtually certain the Court will overturn them, reaffirming and strengthening its own pro-choice precedents in the process.
The pro-life movement now needs a strategy built around things like education, motivation and services to women at risk, along with an expanded pro-life agenda that includes other issues along with battling abortion.
As for the courts, defending the religious liberty right to refuse cooperation with abortion should keep pro-life lawyers occupied now and in the foreseeable future.
Russell Shaw is the author of “American Church: The Remarkable Rise, Meteoric Fall, and Uncertain Future of Catholicism in America.”