2014 Supreme Court Abortion Rulings

2014 Supreme Court Abortion Rulings

The Supreme Court of the United States has rendered on June 26th, the second of two abortion-related decisions this month.  Both rulings were victories for the pro-life advocates.

In McCullen v. Coakley, ___ U.S. ___, 135 S.Ct. __ (June 26, 2014) (9-0; 5+3+1) Massachusetts’ law banning standing on a sidewalk within 35 feet of entrance to a reproductive health care facility but exempting employees and agents of the clinic, designed to eliminate clashes between pro-life and pro-abortion advocates violates the First Amendment because it restricts access to public ways traditionally open for speech and is not content neutral but is focused on abortion clinics, exempts clinic agents, is not narrowly tailored, but substantially burdens speech beyond that necessary to further the state’s legitimate interests.

Ten days earlier, in Susan B. Anthony List v. Driehaus,  ___ U.S. ___, 135 S.Ct. __ (June 16, 2014) (9-0) the Court ruled that the Susan B. Anthony List (SBAL) had standing (judicial competence) to file a suit challenging an Ohio law that criminalizes making a false statement concerning the voting record or a candidate. In this case, Driehaus was an incumbent member of Congress whose votes for Obamacare were criticized by the SBAL as votes for “taxpayer funded abortion.”  Driehaus filed a complaint with the Ohio Elections Commission charging that those criticisms by SBAL were false and violated the Ohio election law. In response SBAL filed a suit in federal court asserting that the federal election law that purportedly criminalized its election claims was unconstitutional.  After he lost his re-election bid, Driehaus dismissed his complaint, and the district court dismissed for lack of standing the SBAL suit challenging the election law, and the U.S. Sixth Circuit Court of Appeals affirmed on similar ripeness grounds. The Supreme Court reversed and held that SBAL had alleged a sufficiently imminent injury for Article III justiciability purposes.  SBAL had shown its intent to act in a way proscribed by the Ohio law, and there was a substantial threat of enforcement of the law against SBAL.

Another Supreme Court decision is expected shortly in the Hobby Lobby case that still is pending. In that case Hobby Lobby and other companies challenge the Obamacare “contraceptive” regulations that require companies to provide insurance coverage for four specific “contraceptives” that can act as abortifacients to cause abortion, in addition to the sixteen pure contraceptives that the companies are willing to provide to employees that merely prevent complete conception.

The constitutional arguments of Hobby Lobby are very strong, especially their first amendment claims.  However, since the Court already has ruled for pro-life parties in two abortion-related cases this term (albeit one of them a purely procedural, and thus peripheral, ruling), for any justices who are very concerned with their image as being in the middle of popular political ideology, a ruling in favor of Hobby Lobbywould mean they ruled three times (out of three cases) in a single year for the pro-life side.  Thus, while constitutional law seems to be solidly on the side of Hobby Lobby, it would not be surprising if the Court ruled against Hobby Lobby in that case and upheld the Obamacare contraceptive-abortifacient mandate. The reason for that prediction is not any reason of constitutional text, precedent, history, or logic, but simply because of judicial politics – the politics of political appearance. For justices concerned with cultivating an image of moderate-middle swing-voting, voting to protect the constitutional rights of the pro-life side in three cases in a row (three-out-of-three in one term) might “appear” to be “too accepting” or “too supportive” of one side (the pro-life side).                                                                                                                                                                                                 — Lynn D. Wardle, posted 26 June 2014

Lynn Wardle