by Ted Cruz
Likewise, the sad carnival attached to the confirmation of Brett Kavanaugh was driven, at its heart, by the Court’s usurpation of power in Roe. Indeed, after Justice Kavanaugh was confirmed, one of the lead lawyers who presented the uncorroborated sexual assault allegations against then-Judge Kavanaugh admitted publicly that savaging the reputation of a Supreme Court nominee thought to be skeptical of Roe is “part of what motivated” her client, Dr. Christine Blasey Ford. As a result, Kavanaugh “will always have an asterisk next to his name,” Dr. Ford’s lawyer said, so that “when he takes a scalpel to Roe v. Wade, we will know who he is, we know his character.”
Following Roe, our nation convulsed and divided into two warring camps: pro-life and pro-choice, although neither uses the terminology preferred by the other. Had the issue remained in the hand of elected legislatures, those warring camps would have had a natural outlet: an avenue to express their views, to make their arguments, to marshal their scientists, to present their evidence. They would have had myriad elections in which to engage, and our country would have reflected a diversity of views. Nobody believes California would choose to enact the same abortion laws that Texas would. Or that New York would enact the same laws as Alabama. Part of the genius of our Constitution’s Framers was establishing a system in which fifty states can enact fifty different standards to reflect the values and policy judgments of their respective citizens. But when nine unelected judges instead decree what is and is not acceptable on a policy as personal and far-reaching as abortion, it produces enormous social division.
Everyone thought Roe was going away thirty years ago. President Ronald Reagan nominated three new justices who were confirmed to the Court. Sandra Day O’Connor was Reagan’s first nominee to the Court, and she became both the first woman nominated and the first woman to serve on the Court. Antonin Scalia was the second Reagan nominee to the Court, and Anthony Kennedy was third. At the same time that Reagan nominated Scalia, he elevated William Rehnquist to be chief justice of the United States. Then, President George Herbert Walker Bush had two more Justices confirmed: David Souter and Clarence Thomas.
In 1992, the case that most observers believed would return the issue of abortion to the elected state legislatures made its way to the Court. In Planned Parenthood v. Casey, Court-watchers, the media, the legal academy, and the political world all counted noses and assumed the votes were finally there to end the Supreme Court’s dominance of abortion issues.
But sadly, when the Court issued its opinion, three of the justices expected by observers to respect the limited role of the Court—a role constrained to the constitutional text—made a different decision instead. Justices Kennedy, O’Connor, and Souter joined together in a rare joint opinion. Typically, a given opinion is authored by a particular justice, and right at the front of the opinion, it will say which justice authored that opinion. Other justices then can choose to join an opinion or not. Or, alternatively, they can write a concurrence (agreeing with the result but for different reasons) or a dissent (disagreeing with the result).
In Casey, the “joint opinion” has no author. Instead, each of the three justices sought to hide behind the others. One portion of Casey is particularly notable, and it has since been acknowledged that it was authored by Justice Kennedy. Justice Kennedy opined that “at the heart of liberty is the right to define one’s own concept of existence, of meaning, of the universe, and of the mystery of human life.”
Pause for a moment to reflect upon what particular expertise lawyers or judges might have about the “meaning of the universe,” or about the “mystery of human life.” If we are resolving existential questions, who in their right mind would choose unelected lawyers in black robes to make those decisions for us? If, on the other hand, we are choosing arbiters to apply statutes or the text of the Constitution, then relying on judges makes good sense.
Casey shocked and astonished observers on both left and right and ushered in even greater anger and division over the question of life. Although it refashioned the legal framework the Court set down in Roe, the core holding of an individual constitutional right to abort an unborn child was upheld.
Shortly after Casey, newly elected Democratic President Bill Clinton stood on the floor of the House of Representatives and expressed a desire that abortion be “safe, legal, and rare.”
That is no longer the Democratic position. In the three decades since, the leadership of the Democratic Party has grown more and more extreme on the question of abortion. Nationally, opinion polls show that roughly 9 percent of Americans support unlimited abortion on-demand up until the moment of birth. And yet, increasingly, that is becoming the uniform position of the Democratic Party. Leading politicians like Bernie Sanders and Democratic National Committee Chairman Tom Perez have expressed, as they both did in 2020, that there is “no place” in the Democratic Party for pro-life Democrats.
In the aftermath of Casey, the views of Americans grew steadily more pro-life while Democratic Party leadership grew more extreme. Pro-life activists began focusing on changing people’s hearts and minds by adopting an incremental legislative strategy.
One common legislative strategy was to enact parental consent statutes for minors seeking to procure abortions. In fact, in Casey itself, the Court upheld the Commonwealth of Pennsylvania’s requirement that minors must obtain the informed consent of at least one parent or guardian prior to obtaining an abortion. This was despite the fact that Casey also upheld Roe’s core holding of an individual constitutional right to abort an unborn child. The Court deemed that such parental consent requirements do not pose an “undue burden” on a woman’s right to abort an unborn child.
In Ayotte v. Planned Parenthood of Northern New England, a case that reached the Court in 2006, I helped defend the constitutionality of the state of New Hampshire’s own parental notification law. I was Texas SG, and we filed an amicus brief at the Court on behalf of Texas and seventeen other states. In our brief, we argued that New Hampshire’s parental notification law was constitutional, and that forty-three out of fifty states had laws requiring either parental notification or parental consent for a minor to get an abortion. These state laws included a judicial bypass for abusive parents, but, in the ordinary case, these laws existed, in Justice Kennedy’s words, so that a parent or guardian could give a “lonely or even terrified minor advice that is both compassionate and mature.”
We argued, procedurally, that the court of appeals had erred in ruling broadly and striking down New Hampshire’s law. The Court ended up agreeing with our narrow procedural argument, and that produced a rare unanimous abortion decision. By a vote of 9–0, the Court vacated the lower court’s judgment, which in turn allowed the New Hampshire statute to stand.
In addition to parental consent requirements, the pro-life movement’s incremental legislative effort to change hearts and minds on the issue of life has also included passing legal prohibitions of the gruesome practice of so-called “partial-birth abortion.” As we saw with Gosnell, partial-birth abortion is a late-term procedure in which the physician partially delivers the unborn child and then, with the infant’s head still in the mother’s womb, uses scissors and forceps to pierce the skull and end the life of the child. Even many Americans who consider themselves pro-choice are horrified at the prospect of late-term abortions, and of partial-birth abortions in particular.
And so nearly thirty states across the country passed laws prohibiting this barbaric procedure. But because the Court had seized control of the abortion issue from state legislatures, declaring abortion to be a constitutionally protected right in Roe and Casey, activists on the left immediately brought litigation challenging those laws. And in 2000, the Court considered a challenge to Nebraska’s partial-birth abortion law, in the case of Stenberg v. Carhart. Showing just how far the Court had gone, by a 5–4 vote the Court struck down Nebraska’s law, concluding that it was unconstitutional because it lacked a sufficiently broad exception for the “health” of the mother
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To be sure, the Nebraska law did include an exception to protect the “life” of the mother. But five justices on the Supreme Court concluded that was not enough and that partial-birth abortion must be allowed whenever a physician concluded it advanced broader “health” concerns, including the avoidance of depression or other possible harm to a woman’s mental health. Because an abortion doctor—whose entire revenue stream comes from performing as many abortions as possible—could diagnose depression or mental health concerns with virtually every abortion, the effect of the Supreme Court’s ruling was to demand that the exception be written so broadly that it would eliminate the rule. Thus, notwithstanding the overwhelming national bipartisan consensus of voters against partial-birth abortion, the Court decreed that the states lacked the constitutional authority to effectively prohibit the practice.
Shortly thereafter, George W. Bush was elected president, and in 2003 he signed into law a federal prohibition on partial-birth abortion. Following the well-established pattern, activist groups immediately returned to the courts, challenging that law. The named plaintiff, LeRoy Carhart, was in fact the very same abortion doctor who had challenged the Nebraska state law in Stenberg. And once again, the case returned to the Supreme Court in the form of Gonzales v. Carhart.
As Texas SG, I authored a brief on behalf of Texas and twelve other states in support of the constitutionality of the federal law. The arguments in the case mirrored the arguments in Stenberg. Once again, the plaintiffs urged the Court to strike down the partial-birth abortion prohibition because it lacked a broad exception for “health” that would allow the partial-birth procedure at the wide discretion of any abortion doctor. The arguments in defense of the law mirrored the arguments in Stenberg, as well.
In our Gonzales brief, we argued that the legal analysis of the “health” exception in Stenberg disregarded the “undue burden” formulation by the Casey Court. Partial-birth abortion is such a gruesome and barbaric procedure that legislatures, both at the level of the states and at the level of the U.S. Congress, must have wide leeway to regulate or ban the practice even under the constitutional test the Court fabricated in Casey.
As we argued in our brief, partial-birth abortion bans “promote at least four important governmental interests: they draw a bright line distinguishing abortion from infanticide; they help to preserve the integrity of the medical profession; they encourage respect for human life; and they prevent unnecessary cruelty to the aborted fetus.” Indeed, in the initial decision of Roe v. Wade itself, the Court had held that the state has a strong interest in the preservation of life in the third trimester—the period in time when partial-birth abortions were most likely to occur.
This time, in Gonzales, we won: the Court ruled, 5–4, in support of the federal Partial-Birth Abortion Ban Act of 2003. What had changed? Only one thing: the composition of the justices. Specifically, Justice Sandra Day O’Connor had been replaced by Justice Samuel Alito, and suddenly, the five justices who had ruled that elected legislatures could not prohibit partial-birth abortion had become five justices who ruled that they could. Today, as we look at the Court, that five-justice majority that upheld the federal partial-birth abortion decision remains precarious.
The sharp divide on the Court continues today. In 2016, in the case of Whole Woman’s Health v. Hellerstedt, a 5–3 Court majority (there were only eight justices because Justice Scalia had passed away only a few months before the decision) ruled that the state of Texas could not legally enact the commonsense health protection measures the state signed into law in 2013. These measures included a requirement that abortion providers have admitting privileges at a hospital within thirty miles of the abortion facility, as well as a requirement that abortion facilities meet the same regulatory standards as outpatient surgical centers. Even under Roe, protecting the health of mothers was recognized as an important government objective. Although rules to ensure sanitary and safe medical conditions are ubiquitous outside of the abortion context, the Court nonetheless ruled that those same safety regulations created an “undue burden” under Casey that violated a woman’s right to procure an abortion.
This past summer, the Court had the opportunity to revisit its erroneous Whole Woman’s Health decision, in the case of June Medical Services v. Russo, which considered a Louisiana statute almost identical to the Texas statute that had been struck down. By now, Justice Scalia’s vacancy had been filled by Justice Gorsuch, and Justice Kennedy had been replaced by Justice Kavanaugh. The simple math meant that the previous 5–3 vote to strike down the Texas law would now presumably be a 5–4 vote to uphold the law.
But, alas, that was not to be. Chief Justice Roberts, who had voted in dissent in Whole Woman’s Health, switched his vote and voted to strike down the Louisiana statute. Although not one iota of his legal reasoning had changed from four years earlier (and, obviously, the text of the Constitution had not changed), Roberts now joined the four liberal justices and ruled that under stare decisis (respect for previously decided precedents), both laws should be struck down. Sadly, stare decisis often seems to be a one-way ratchet; so-called conservatives (although Roberts is becoming less and less of one) willingly perpetuate lawless left-wing precedents, while liberals happily and reliably vote to overrule conservative precedents. The Court’s vote in June? 5–4. One vote away.
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The growing extremism of elected Democrats on the issue of abortion seems to know no bounds. Medical science has advanced considerably in the nearly fifty years since Roe. We now know that unborn children feel pain in the womb as early as twenty weeks into gestation, and sonograms reveal their writhing in agony during late-term abortion procedures. Nevertheless, when Congress has voted to prohibit abortions after twenty weeks’ gestation time, nearly every Senate Democrat (all but three, in 2018) has voted against that prohibition.
Even more ghastly, just this year, Congress voted on the Born-Alive Abortion Survivors Protection Act, which provided that if, in the course of an abortion, a child is born alive—as in, that child is outside the womb, breathing, crying, separate, and apart from its mother—then the physician must provide medical care to that child and cannot simply allow the child to die. Once again, all but three Senate Democrats voted against protecting the lives of infants already born alive. Reviewing the horror of Kermit Gosnell, it is wholly appropriate for the American people to ask who could possibly take such a vote.
Perhaps the most vivid illustration of the radicalization of today’s Democrats on abortion can be seen with Virginia Governor Ralph Northam. Northam gained international infamy when his medical school yearbook page was discovered with a photograph of a white man dressed in blackface standing next to another man dressed in a KKK robe. When the news broke, Northam apologized for the racist picture on his page and explicitly acknowledged that he was one of the two men in costume (although he didn’t say which one). The next day, he changed his mind and said he didn’t think he was one of the two men in the photo. Although the media went into a frenzy because he might have appeared in blackface, very little attention was paid to Northam’s initial acknowledgment suggesting it could have been him in the Klan robe instead.
Any elected official (or anyone else) should be able to say, unequivocally and without hesitation, “I have never worn a KKK robe.” Yet nobody in the media seemed to care that the (still sitting) Democratic governor of Virginia—a state with a tragic record on race relations—could not make that straightforward statement.
Prior to the Klan scandal, Northam had made waves for his extremism on abortion. He himself is an obstetrician, and in a 2019 radio interview he defended Virginia legislation that would allow abortion even up to and during labor while delivering the child. Northam then described the approach he believed a doctor should take if a child was born alive in the course of an abortion:
If a mother is in labor, I can tell you exactly what would happen. The infant would be delivered. The infant would be kept comfortable. The infant
would be resuscitated if that’s what the mother and the family desired, and then a discussion would ensue between the physicians and the mother.
Listening to that radio interview, what’s so disconcerting is the total calmness in his voice. Like he’s describing the weather outside. Hannah Arendt wrote powerfully of the “banality of evil.” With that same banality, utterly without emotion, Northam describes having a “discussion” about whether to sit back and let a newly born infant—fully born, outside the womb—simply die.
Earlier this year, the Senate took up the Born-Alive Abortion Survivors Protection Act, legislation to ban what Northam had described, denying medical care to newborn infants. At a Senate Judiciary Committee hearing, I spoke in support of what should be commonsense legislation:
The topic of this hearing, in my view, should not be the subject of reasonable disagreement. That when one is discussing an infant who has been born, who is alive, who is breathing, who is crying, who is outside the womb, the idea that it would be somehow debatable what to do with that child, that there would be another side, so to speak, politically, about whether to kill that child, whether to allow that child to live, or whether to do everything you can to protect that innocent life. It is a remarkable statement of just how extreme and radical the pro-abortion side of this debate has gotten.
Shortly thereafter, I went to the Senate floor to urge my colleagues to support the bill and to come together in defense of innocent life:
Mr. President, stop and think about this for a moment. There have been debates about abortion for a long, long time. This bill was allowing a mother in labor—in the process of delivering a child—this bill would allow a doctor to kill that child instead of delivering the child in the midst of labor. For a great many people, even Americans who identify as pro-choice, the idea of killing a child while the mother is in labor delivering the infant, is horrifying beyond words.