Today we give thanks to God for the wisdom and courage of U.S Supreme Court Justices Samuel Alito,  Clarence Thomas, Neil Gorsuch, Brett Kavanaugh, and Amy Coney Barrett for holding that the “Constitution does not confer a right to abortion; Roe v. Wade and Planned Parenthood of Southeastern Pennsylvania v. Casey are overruled; [and] the authority to regulate abortion is returned to the people and their elected representatives.”

The syllabus (i.e., summary) in Dobbs v. the Jackson Women’s Health Organization outlines the major arguments addressed by the majority:

• Without any grounding in the constitutional text, history, or precedent, Roe imposed on the entire country a detailed set of rules for pregnancy divided into trimesters much like those that one might expect to find in a statute or regulation.

• Until the latter part of the 20th century, there was no support in American law for a constitutional right to obtain an abortion. No state constitutional provision had recognized such a right. Until a few years before Roe, no federal or state court had recognized such a right. Nor had any scholarly treatise. Indeed, abortion had long been a crime in every single State.

• Attempts to justify abortion through appeals to a broader right to autonomy and to define one’s “concept of existence” prove too much. … Those criteria, at a high level of generality, could license fundamental rights to illicit drug use, prostitution, and the like. What sharply distinguishes the abortion right from the rights recognized in the cases on which Roe and Casey rely is something that both those decisions acknowledged: Abortion is different because it destroys what Roe termed “potential life” and what the law challenged in this case calls an “unborn human being.” None of the other decisions cited by Roe and Casey involved the critical moral question posed by abortion.

• [T]he Court cannot allow its decisions to be affected by such extraneous concerns [i.e., stare decisis/precedent]. A precedent of this Court is subject to the usual principles of stare decisis under which adherence to precedent is the norm but not an inexorable command. If the rule were otherwise, erroneous decisions like Plessy would still be the law.

Writing for the Court, Justice Alito made mincemeat of the lousy arguments proffered in Roe and Casey, but the political invertebrate Chief Justice John Roberts did what he does best. He tried to swim smack dab down the middle of this roaring river. Hard to do without a spine. The political Roberts voted with the majority but refused to overturn Roe and Casey despite numerous leftist legal scholars acknowledging for decades that Roe lacked any grounding in the U.S. Constitution.

Justice Thomas again renewed his quest to revisit “substantive due process” jurisprudence, which he argues “has harmed our country in many ways,” and, therefore, “we should eliminate it from our jurisprudence at the earliest opportunity.” He shares this view with Justices Antonin Scalia and Hugo Black as well as Robert Bork and many other legal scholars.

Thomas has long argued that because of the “erroneous” nature of substantive due process jurisprudence, “in future cases, we should reconsider all of this Court’s substantive due process precedents, including Griswold, Lawrence, and Obergefell.”

Those cases addressed, respectively, the purported constitutional right to access contraception, the purported constitutional right to engage in homosexual sodomy, and the purported constitutional right of two people of the same sex to marry.

To be clear, Thomas’ argument regarding substantive due process jurisprudence has nothing to do with his moral view of contraception, sodomy, or marriage. Rather, he is making an argument about the constitutional basis—or lack thereof—of substantive due process doctrine, which Justice Antonin Scalia too criticized:

The entire practice of using the Due Process Clause to add judicially favored rights to the limitations upon democracy set forth in the Bill of Rights (usually under the rubric of so-called “substantive due process”) is in my view judicial usurpation.

Justice Hugo Black was similarly critical of substantive due process doctrine in Griswold:

[T]here is no provision of the Constitution which either expressly or impliedly vests power in this Court to sit as a supervisory agency over acts of duly constituted legislative bodies and set aside their laws because of the Court’s belief that the legislative policies adopted are unreasonable, unwise, arbitrary, capricious or irrational. The adoption of such a loose, flexible, uncontrolled standard for holding laws unconstitutional, if ever it is finally achieved, will amount to a great unconstitutional shift of power to the courts which I believe and am constrained to say will be bad for the courts and worse for the country. Subjecting federal and state laws to such an unrestrained and unrestrainable judicial control as to the wisdom of legislative enactments would, I fear, jeopardize the separation of governmental powers that the Framers set up and at the same time threaten to take away much of the power of States to govern themselves which the Constitution plainly intended them to have.

Leftists mock Thomas for his substantive critique of substantive due process mischief. They do so because they fear losing the power of the Court to act as a supreme law-making body. Well, they did fear that while they controlled the Court.

But Thomas’ critique is not a fringe critique, and he may have at least one ally on the Court: Justice Neil Gorsuch.

Now, the arduous work of changing hearts and minds that have been corrupted by nearly fifty years of leftist propaganda becomes even more urgent.

We need to donate more money to crisis pregnancy centers, both to help mothers who are considering abortion and to repair damage from domestic terrorists like Jane’s Revenge that promises violence to organizations that seek to protect children in their mothers’ wombs.

We need to pour money into creative, compelling public service/social media campaigns and the arts in order to elicit support for protecting preborn babies.

We need to elect wise, courageous state leaders who stand boldly for the sanctity of lives that pro-abortion activists deem unworthy of life.

We need to pass fiscal and social policies that end—rather than create—poverty, and we need to create a culture that doesn’t think a solution to poverty is baby sacrifice.

And we need to educate our children in places that teach that humans in their mothers’ wombs are sacred and that neither their developmental status, nor their convenience for others, nor their imperfections grant to their mothers the moral right to have them killed.

And we need to pray ceaselessly for the least of these. We must pray that incipient human lives are able to survive the dangerous waters of their mothers’ wombs.

Listen to this article read by Laurie:

https://staging.illinoisfamily.org/wp-content/uploads/2022/06/The-Nightmare-of-Roe-Ends.mp3

In the first few days of his confirmation hearings,Judge Brett Kavanaugh has already been doggedly questioned on his views on abortion, specifically whether he will overturn Roe v. Wade. The attention on his views is warranted. If Judge Kavanaugh is confirmed to the U.S. Supreme Court, the 5-4 conservative majority will have the ability to overturn the court-protected “right” to abortion.

But contrary to conventional wisdom, Roe v. Wade is no longer the main constitutional guardian for abortion access. While Roe established that the constitutional right to privacy extends to the choice of whether to abort a baby, most of Roe’s jurisprudence has been replaced by another U.S. Supreme Court case, Planned Parenthood v. Casey. It is Casey, not Roe that governs most of abortion jurisprudence today.

When Roe was first heard by the U.S. Supreme Court in 1973, few on either side of the abortion debate thought the case would produce a far-reaching decision on the issue. The case was initially taken up by the Court to decide a technical civil procedure issue. As a result, the Court did not have a factual record of the medical, social, and legal effects of abortion restrictions (Roe’s questionable background is excellently documented in Clarke Forsythe’s book Abuse of Discretion). This left Justice Harry Blackman without much guidance and the freedom to be creative.

The result was ugly and not just due to Roe’s tragic consequences for millions of unborn children. Justice Blackman’s unwieldy legal reasoning made legal scholars of all viewpoints blush for its broad scope and legislative-like assertions. The Court found that the U.S. Constitution’s implied right to privacy (based on the famous birth control case of Griswold v. Connecticut) extends to a woman’s decision to choose abortion, though the state had legitimate state interests in protecting the mother’s health and “potential life” of the child.

To balance these interests, Justice Blackman created a statute-like three-trimester system outlining what aspects of the abortion procedure the state can regulate at each of the three stages. In the first trimester, the decision whether to abort the child was left completely to the mother. In the second trimester, the only regulation on the procedure had to be necessary to protect the mother’s health. It was only after the point of fetal viability—which Justice Blackman also chose without any substantive legal basis—that the state could prohibit abortion altogether. The decision was disjointed, ill-informed, and without a grounded basis in constitutional law, making it vulnerable to being overruled.

In 1992, Roe was put on trial in the case Planned Parenthood v. Casey. But instead of overruling Roe, the Court decided to keep the outcome yet overhaul its legal structure. Gone was Roe’s clunky trimester system. In its place, Justice Sandra Day O’Connor implemented a more judicially scrupulous standard, known as the “undue burden test.” Now when reviewing a law restricting access to abortion, a court must ask whether the law has the purpose or effect of placing an undue burden on the woman deciding whether to seek an abortion. For example, in Whole Woman’s Health v. Hellerstedt, the U.S. Supreme Court struck down a 2015 Texas law that placed new health and safety standards on abortion clinics that would have caused 21 of the 40 clinics in the state to close due to their inability to comply with it. The Court found that the health and safety concerns of mothers were not valid enough concerns compared to the decreased access to abortion. Therefore, the law was unconstitutional under Casey because it placed an undue burden on access to abortion.

With Casey, the path to overrule Roe becomes more difficult for several reasons. First, Casey’s undue burden standard is widely considered to be a more judicially acceptable constitutional standard than Roe’s unusual trimester system. Before Casey, if the U.S. Supreme Court wanted to overrule to right to abortion access, they could have said that Roe was simply a poorly conceived decision and should be overruled in its entirety. However, under the undue burden test, the Court loses that justification.

Second, courts have a general rule of respecting prior decisions in a doctrine known as stare decisis. The more case law that backs a certain position, the less likely the Court is to be willing to overturn that precedent. Having two major U.S. Supreme Court decisions supporting a precedent will make a future court wary to change it.

This is not to say all hope for protecting the lives of the unborn is lost. It is unlikely, however, that the Court will overrule the right to abortion in one bold stroke in a single case. More realistically, the Court’s conservative majority will slowly chip away at past precedent by upholding pro-life laws. Ironically, the conservative majority could do this by using the flexibility of Casey’s undue burden standard. What comprises an undue burden on abortion access can mean essentially anything the Court wants it to mean. The Court could say that few or even no government restrictions on abortion would constitute an undue burden on abortion access. For example, a health and safety law that closes abortion clinics like that in Hellerstedt does not place an undue burden on abortion access, because it merely insures the safety of the mother, and any clinic closures are simply an incidental effect. Roe would not be explicitly overturned but effectively undermined.

Some argue that the undue burden standard is already weaker than what it was in Casey. In the 2007 case Carhartt v. Gonzalez, the U.S. Supreme Court upheld a congressional ban on partial-birth abortion, a procedure that kills the child once he or she is partially outside the body of the mother. The Court ruled that simply banning a certain form of abortion does not place an undue burden on abortion access.

With Judge Kavanaugh on the U.S. Supreme Court bench, the pro-life movement has reason for hope that legal protections for the unborn will not be struck down. With, however, all the attention focusing on whether Judge Kavanaugh will strike down Roe, a more poignant question is how stringently he will apply the undue burden standard of Casey.

IFI’s Annual
Faith, Family & Freedom Fall Banquet

Friday, October 5, 2018
The Stonegate in Hoffman Estates

Featuring special guest, George Barna

The early bird special expires on Sept. 14th 

Secure your tickets or table now – click here or call (708) 781-9328.

Written by Pastor Scott Lively

What we call the pro-family movement is a component of the larger conservative movement and deals with matters of sexuality and the natural family. Its American roots are in the cultural backlash to the Marxist revolution of the 1960s that turned family-centered society on its head and swapped the Judeo-Christian morality of our founding for Soviet-style “political correctness.”

Before the 1960s there wasn’t any need for a “pro-family” movement because family values had been the overwhelming consensus of the western world for centuries. Indeed, so surprised were Americans about the cultural revolution that it took nearly twenty years for the conservatives to mount a truly effective response to it. That came under Ronald Reagan in the 1980s.

The 60’s revolution was not grounded in the Marxist orthodoxy of Lenin and Stalin, but the Cultural Marxism of Herbert Marcuse’s Frankfort School, which envisioned sexual anarchy, not a “workers revolt,” as the key to dismantling Judeo-Christian civilization. The natural core constituency for this ideology was the underground “gay” movement whose dream of social acceptance was not possible without a complete transformation of American sexual morality. Thus, beginning in the late 1940s, Marxist organizer Harry Hay, so-called “father of the American gay movement” was also “father” of the (then hidden) army of “gay” activists most responsible for the “culture war” that exploded in the 60’s and continues today.

America’s Marxist revolution was therefore a “sexual revolution” whose overwhelming success vindicated Marcuse’s destructive vision and became the primary tool of the one-world government elites for softening resistance to their domination by breaking the family-centered society which is every nation’s greatest source of strength, stability and self-sufficiency.

Importantly, though primarily driven behind the scenes by “gays,” the first goal was not legitimization of homosexual sodomy but the normalization of heterosexual promiscuity. This was the motive and strategy that drove “closeted” 1940s and 50s homosexual activist Alfred Kinsey’s fraudulent “science” attacking the marriage-based sexual ethic as “repressive” and socially harmful. It also drove the launch of the modern porn industry, beginning with Hugh Hefner’s Playboy Magazine (Hefner called himself “Kinsey’s pamphleteer”). It drove and defined the battles in the courts where sexual morality was systematically “reformed” by Cultural Marxist elites on the U.S. Supreme Court: contraception on demand to facilitate “fornication without consequences” (Griswold v Connecticut 1966), abortion on demand as the backup system to failed contraception (Roe v Wade 1973), and finally legalization of homosexual sodomy (Lawrence v Texas 2003).

Note the thirty year gap between Roe v Wade and Lawrence v Texas. That major delay in the Marxist agenda was achieved by the election of Ronald Reagan, under whom the pro-family movement became a major political force. That gap also highlights a critical fact: that “street activism” may be essential to any political cause but the real key to the culture war is the U.S. Supreme Court. By 1981 when Ronald Reagan took power the Marxists had nearly succeeded in collapsing the nation’s family and economic infrastructure and the LGBT juggernaut had come completely out of the shadows and taken its place at the head of the cultural blitzkrieg it had been steering from the beginning. Reagan stopped that juggernaut by putting Antonin Scalia on the U.S. Supreme Court, the lion of constitutional originalism who wrote the majority opinion in Bowers v Hardwick (1986) which affirmed (not created) the constitutional right of states to criminalize homosexual sodomy and other harmful sexual conduct in the public interest.

Reagan and Scalia stopped the sexual revolution in its tracks and made it possible for the pro-family movement to begin restoring family values in society, which we strove diligently to do. I got my start in Christian social activism in those heady days and served as State Communications Director for the No Special Rights Act in Oregon in 1992 which forbade the granting of civil rights minority status based on sexual conduct. We fell short in Oregon but a Colorado version of our bill passed the same year. We had in essence won the culture war with that victory given that the Supreme Court had previously ruled that minority status designation required three things: a history of discrimination, political powerlessness, and immutable (unchangeable) status (such as skin color). We had a slam-dunk win on at least two of the three criteria and it would have been just a matter of time before we passed the No Special Rights law from coast to coast.

However, Reagan had been prevented by the elites from putting a second Scalia on the court in the person of Robert Bork, and was forced by the unprecedented political “borking” of Mr. Bork to accept their man Anthony Kennedy to fill the seat instead. Just ten years later, Kennedy served his function by writing the majority opinion killing the Colorado law in Romer v Evans (1996), audaciously declaring that the court didn’t need to apply its three-part constitution test to the No Special Rights Act because it was motivated by “animus” (hate) and thus did not represent a legitimate exercise of the state’s regulatory authority. The ruling was all the more outrageous given that it was only possibly through a blatant abuse of the court’s own judicial authority. Kennedy’s “disapproval = hate” lie set the tone for the political left from that point forward.

In Lawrence v Texas, Kennedy delivered the coup-de-grace to Justice Scalia by striking down Bowers v Hardwick and brazenly ruling that “public morality” cannot be the basis for law. Anthony Kennedy wrote the majority in all five SCOTUS opinions that have, in essence, established homosexual cultural supremacy in America, including the infamous and utterly unconstitutional Obergefell v Hodges (2015) “gay marriage” decision. He is, in my opinion, the worst and most culturally destructive jurist in the history of the court: the culprit (among many villainous candidates) most responsible for the current dysfunctional state of the family in America.

So where’s the “bright future” amidst this lamentation? It’s in the promise made and so-far kept by President Donald Trump to appoint only constitutional originalists to the supreme court. It is in the pleasantly surprising discovery that his first pick, Neil Gorsuch, seems from his first comments as a “supreme” to be a perfect choice to fill the “Scalia seat” on the court. It is in the hopeful rumors that Anthony Kennedy is about to retire, and the simple fact that ultra-hard leftist Ruth Bader Ginsberg and leftist Steven Broyer are of an age that their seats could at any time be vacated by voluntary or involuntary retirement.

In short, the bright future of the pro-family movement is in the hands of the man we hired to drain the swamp in Washington DC, and who hasn’t yet backed down in that fight despite the remarkable scorched-earth campaign of destruction and discreditation being waged against him by the establishment elites of both parties, Hollywood and the media.

I must admit that after Obergefell I began to think that the pro-family movement had lost the culture war, but I now believe there is real hope, not just for reclaiming some lost ground, but possibly of reversing all of the “gains” of the hard left over the past half century. A solid majority of true constitutional originalists could actually restore the legal primacy of the natural family in America fairly quickly, and our cultural healing could quickly follow.

As the leftist elites and street activists continue their all-hands-on-deck attempted “borking” of President Trump, let’s not forget why they’re doing it. His political survival means the end of theirs. I can’t think of a brighter future than that for our nation.

This article was originally posted at ScottLively.net