Is ‘RBG’ M.I.A.? Activists, Experts Discuss Fight for Life at Supreme Court

Supreme Court battles over life issues are heating up — including the potential of another vacancy. Elected officials and pro-life leaders share insights on what to expect.

Left: Pro-life advocates stand in protest outside of the Supreme Court, March 2, 2016, in Washington. Right: Justice Ruth Bader Ginsburg poses during the latest Supreme Court group portrait in November 2018.

By Josh Shepherd Published on January 31, 2019

In the weeks following the March for Life, public dialogue of life issues typically subsides. Yet, after recent passage of a controversial New York law and Virginia’s effort to follow suit, abortion policy continues to be hotly discussed on social media and in religious circles.

Then there’s the Supreme Court, the ultimate battleground for legal fights for life.

In interviews throughout the two-day March, elected officials, attorneys and activists offered their views on the Court … and possibility of another vacancy.

Another Court Vacancy?

“The Supreme Court has certainly shifted to the right,” said Sue Thayer of faith-based nonprofit 40 Days for Life. She worked for Planned Parenthood for 18 years before leaving her role a decade ago.

“There is the possibility it could go even farther right if President Trump has another nominee,” she added. “I am very hopeful on every level.”

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Senator Steve Daines, R-Mont., noted the confirmation of Justices Neil Gorsuch and Brett Kavanaugh as “the best pro-life result” from the past two years. He spoke to The Stream before addressing the March for Life on the National Mall.

“This last Senate put two new Supreme Court Justices on the bench and 30 new circuit court judges,” said Daines. “In the history of our nation, that’s the most circuit court judges moved through Congress during the first two years of a presidency.”

Speculation has increased about when Justice Ruth Bader Ginsburg, age 85, may vacate her seat on the Supreme Court. Following a cancer surgery that took place on December 21, the justice, known by her initials “RBG,” has reportedly been in recovery. It has been nearly two months since Ginsburg last appeared in public.

Speculation has increased about when Justice Ruth Bader Ginsburg, age 85, may vacate her seat on the Supreme Court. It has been nearly two months since she appeared in public.

“I hope [a vacancy] is because of a retirement as opposed to the alternative,” said Tom McClusky, president of March for Life Action. “If it’s going to happen, I hope it happens within the next two years. The election landscape for the Senate in 2020 does not look good.”

New Voices on Key Senate Committee

Senator Steve Daines

Senator Steve Daines

Senator Steve Daines stated he and his colleagues are ready for any potential openings on the high court. “If there were to be another vacancy, I have spoken with Lindsey Graham, the new chairman of the Judiciary Committee,” said Daines. “We’ll be ready to move forward with another great judge to serve on the Supreme Court.”

After last year’s elections, the Senate has a 53-47 Republican majority. While the House flipped to a Democratic majority, the lower body is not involved in judicial nominations.

Tennessee elected Marsha Blackburn to the Senate, known for her pro-life leadership in the House. Early this month, she and colleague Senator Joni Ernst were appointed to the Senate Judiciary Committee.

“Senators Blackburn and Ernst will be fantastic,” said McClusky. “It’s long overdue that there are conservative females on that committee. It should be reflective of all of Congress, and that perspective has been sorely lacking.”

Life-Related Cases On the Horizon

Two petitions before the Supreme Court — one from Indiana, the other Louisiana — are viewed as potential “wedge” issues in the abortion debate. The high court will decide in coming weeks whether or not to weigh in on these state pro-life laws.

Chuck Donovan

Chuck Donovan

“Indiana basically outlawed abortions performed because the baby has been found to have a disability,” said Chuck Donovan, president of Charlotte Lozier Institute. The nonprofit group provides analysis on issues of human life and ethics.

“Their state law also covers the sex and race of the baby as being rationales for an abortion to occur,” he added. “It is essentially a civil rights exemption for the baby, from the general rule that abortion is legal.”

The fate of the Indiana case, Box v. Planned Parenthood, will likely be decided in a conference of the justices on February 15. “This is not an issue the Supreme Court has addressed before,” said Donovan. “It would be an important ruling if the court takes this case.” The high court lists the case as pending.

Attorney Allan Parker of The Justice Foundation expressed skepticism. “They should grant cert,” he said. “But, for a solid 6-3 majority, it may take one more conservative judge to look at the abortion issue with an open mind.”

The Louisiana case concerns a bill sponsored by State Rep. Katrina Jackson, D-La., and enacted in 2016. It requires abortion providers to have admitting privileges in a nearby hospital. In 2018, the high court allowed a similar Arkansas law to take effect. In the case, the state of Louisiana has been directed to respond to Planned Parenthood’s recent petition.

Two petitions before the Supreme Court are viewed as potential “wedge” issues in the abortion debate. The high court will soon decide whether or not to weigh in on these state pro-life laws.

“Many [conservative] attorneys are looking at state-level cases that may come to the Supreme Court,” said McClusky. “Sometimes groups like Americans United for Life, Alliance Defending Freedom and Becket Law all have differing opinions.”

Safe Haven Laws and Adoption

For over a decade, Parker represented Norma McCorvey (“Jane Roe”) as she petitioned the court to reconsider its Roe v. Wade decision. She died in 2017. He contends the controversial opinion rests on faulty legal reasoning.

Particularly, Parker questions whether unplanned pregnancies are a burden. “Today, no woman has to care for a child that she doesn’t want,” he said. “Through Safe Haven laws, she can deliver that child to the state within a set period of time after birth. It’s free to the rich and the poor. It’s available in every state of the union.”

Rep. Vicky Hartzler

Rep. Vicky Hartzler

Congresswoman Vicky Hartzler, R-Mo., leads the Values Action Team in the U.S. House. Over 100 House members meet twice monthly to discuss legislative matters on life, religious liberty and other social issues. Despite a new House majority entrenched against her party, Hartzler noted an issue where there may be common ground.

“There is always opportunity for promoting adoption,” said Hartzler. “It’s something I’ve worked on with Democratic Members of Congress. Last year, some good bills did not pass in the Senate but I’m hopeful that we can work together again and make it happen.”

One conservative leader expanded on the specifics. “We had bipartisan success last year with the Child Welfare Provider Inclusion Act,” said Jessica Anderson, vice president of Heritage Action for America. “We had Democrats on that HHS rider, which made it out of committee though it didn’t pass. It was a huge step because that legislation had never seen daylight.”

For Rep. Hartzler, her stand for life is deeply personal. “In Missouri, when I was a state legislator, I worked for years to reform state adoption laws,” said Hartzler. “Later, my husband and I were blessed to become parents through adoption.”

Petitions and the President’s Speech

The annual State of the Union address by President Trump is now set for February 5. As the nine Supreme Court Justices traditionally attend, many observers will be watching for Justice Ginsburg. (Last year, five Justices declined to attend the President’s annual address.)

Allan Parker, Esq.

Allan Parker, Esq.

“I am praying for healing and salvation for her,” said Parker. “I also pray that abortion would come to an end. We don’t need to be trapped in outdated 1970’s science. If there’s a better way, Americans want to go forward and take a fresh look at it.”

Over the past two years, Parker has lent his legal expertise to a grassroots effort known as The Moral Outcry. Those who sign on to the petition are added as clients to amicus curiae briefs, which The Justice Foundation files periodically with the Supreme Court.

“It’s an unusual strategy, but it’s not impossible,” explained Parker. “Every time the court considers abortion, we’re going to file the latest petition of Americans who agree on a few basic points. They believe that abortion is a crime against humanity, new science shows that life begins at conception and new evidence shows that abortion hurts women.”

He reports that their latest petition currently has more than 133,000 names. It is one of several strategies advocates are pursuing towards pro-life advances, despite the divided Congress.

“Our lane at March for Life Action is grassroots activism,” said McClusky. He circled back to the question of which case could challenge current abortion policies. “We’ve told the legal groups: You guys figure it out.

“When they do, we’ll make sure those who need to be prepared — pregnancy care centers and people on the front lines — are ready.”

 

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