US Supreme Court vacates decision involving undocumented teen’s abortion

Here is a link to the Court’s decision in Azar v. Garza. In this case, the DC Circuit had allowed an undocumented teen who was in custody to obtain an abortion over the government’s objection. Because the teen obtained an abortion, the Supreme Court considered the case moot and, pursuant to its standard practice, vacated the DC Circuit’s decision and remanded the case to the lower court.

The Administration had asked the Court to sanction the teen’s lawyers for “what appear to be material misrepresentations and omissions” that were “designed to thwart” Supreme Court review.  Without delving into the factual disputes about the teen’s lawyers’ conduct, the Court did not sanction the teen’s lawyers.

The Court’s decision did not resolve the broader issue of whether undocumented teens in governmental custody have a right to an abortion.

Good article by Professor Tom Molony

Here is a link to a good article by Professor Tom Molony (Elon Law). The article is forthcoming in the Florida Law Review.

Here is the abstract—

“The United States Supreme Court dealt a significant blow to abortion opponents in Whole Woman’s Health v. Hellerstedt, but the 2016 ruling did not dampen their resolve. Just days after Texas lost the Hellerstedt battle, the Texas Department of State Health Services (“DSHS”) returned to the fight and proposed regulations requiring healthcare facilities to inter or cremate the remains of aborted and miscarried fetuses. And undeterred by a preliminary injunction entered against those regulations once they became final, the Texas legislature enacted a law with similar effect in June 2017.

The Texas law, however, proved to be good ground for yet another victory for those who advocate choice. Having already found the DSHS regulations wanting, the United States District Court for the Western District of Texas enjoined the new statute, concluding that it was unlikely to survive the undue burden test that the Supreme Court set out in Planned Parenthood of Southeastern Pennsylvania v. Casey.

The United States Court of Appeals for the Seventh Circuit now has followed suit with respect to an Indiana law regulating the disposition of fetal remains. But rather than applying Casey’s undue burden test, the appeals court determined that the Indiana statute could not survive even the very deferential rational basis standard of review. Importantly, the decisions of both the Texas district court and the Seventh Circuit conflict with a 1990 decision of the United States Court of Appeals for the Eighth Circuit to uphold a Minnesota fetal remains disposition law—in a case tried before Roe v. Wade’s demanding trimester framework gave way to Casey’s more lenient undue burden standard. Thus, three federal courts are now in conflict, and the Supreme Court may need to step in yet again to decide who is right.

Unfortunately, Hellerstedt provides no easy answer to the question of whether fetal remains disposition requirements like those enacted in Texas and Indiana can survive constitutional challenge. The Texas legislation at issue in Hellerstedt purportedly advanced the State’s interest in safeguarding maternal health, and thus one questions how the Hellerstedt Court’s interpretation of Casey’s undue burden standard will apply to abortion regulations that are founded on the State’s interest in protecting potential life. What is certain, though, is that the Hellerstedt Court did not overrule its decision either in Casey or in Gonzales v. Carhart, both of which upheld measures aimed at encouraging a woman to choose childbirth over abortion. This Article thus contends that, when viewed in light of Casey and Gonzales, Hellerstedt’s interpretation of the undue burden test leaves States with a great deal of latitude to regulate abortion in a manner aimed at protecting potential life. As a result, efforts to regulate the method of disposing of fetal remains should pass constitutional muster.”

US Supreme Court Refuses to Hear Challenge to Arkansas Pro-Life Law

Here is a link to a LifeNews story on the US Supreme Court’s refusal to hear a Planned Parenthood challenge to an Arkansas pro-life law. The case is called Planned Parenthood of Arkansas and Eastern Oklahoma v. Jegley and the Court denied review on May 29, 2018. The law restricts medication-induced abortions and requires clinics performing medication abortions to have a contract with an ob/gyn who has admitting privileges at a local hospital. A federal district judge struck down the Arkansas law but the United States Court of Appeals for the Eighth Circuit reversed that ruling.   The Court refused to hear a challenge to the Eighth Circuit’s decision. Pro-choice groups had viewed the case as an important indicator of the Court’s commitment to the its 2016 decision in Whole Woman’s Health v. Hellerstedt. The Arkansas case will now return to the lower courts.

Irish Vote Removes Protection for the Unborn

On May 26, 2018 Irish voters removed the 8th Amendment to the Irish Constitution, which protected the right to life of the unborn. The Irish Parliament is now expected to pass legislation legalizing abortion. Here is a link to a LifeNews story and here is a link to commentary from The Catholic Thing.

Update on California assisted suicide law

California’s End of Life Option Act, which went into effect on 2016, was recently declared unconstitutional by Riverside County Superior Court Judge Ottolia. Judge Ottolia found that the California legislature had passed the law improperly. The law had been passed during a special session dedicated to healthcare issues and Judge Ottolia found that the suicide law was not germane to the purpose of the special session. Here is a link to a story by Wesley Smith on the state court ruling. Here is a link to an LA Times story describing the current status of the litigation. The California Attorney General has appealed Judge Ottolia’s ruling but the California assisted suicide law is not currently in effect.

Rachel MacNair on “Our Pro-Life Future”

Rachel MacNair, a frequent speaker at University Faculty for Life conferences, has just published a very good piece in the June/July 2018 issue of First Things. Her essay is entitled “Our Pro-Life Future.” I can’t locate an on-line version but I encourage readers to find a copy. MacNair focusses on positive trends–declines in the number of abortions and in the abortion rate, and the dramatic decline of women having first time abortions. After noting various ways to appeal to those who are not in the pro-life camp, she concludes–“The pro-life movement is in very good shape. The trends are all in the right direction, and the signs indicate that they’ll continue in the right direction. If we recognize this, we can take full advantage of basic principles of the innate human desire for cognitive consonance–and the radiance of moral truth–in order to speed up the process.”