Officially, the Supreme Court’s most recent abortion ruling, in June Medical Services LLC v. Russo, was decided five to four, with Chief Justice John Roberts joining the liberal majority in striking down a Louisiana law that required doctors who perform abortions to have admitting privileges at a local hospital. But in an important sense, the case was decided eight to one, with only Justice Clarence Thomas addressing the root of the problem, which is that Roe v. Wade and Planned Parenthood v. Casey have saddled the court with an indefensible standard that ought to be discarded and replaced.
As David French pointed out, the other justices who are usually considered sympathetic to the pro-life cause did not join Thomas’s dissent. Indeed, they implied that they accepted the basic framework of Casey—appearing to acknowledge that if the Louisiana law did, in fact, substantially burden a woman’s access to abortion, it should be struck down. And in a remarkable passage of the majority opinion, Chief Justice Roberts writes that the task of comparing the value of prenatal life with a woman’s liberty interest cannot plausibly be done by anyone, “let alone the Court.” But the pro-life movement has been trying for more than five decades to get the court to do precisely this.
To accomplish this goal, we who are a part of that movement aligned ourselves with a political party generally in favor of defending liberty and opposed to using the government to protect the vulnerable. A party that denies a right to health care (including for women at risk for abortion). A party that refuses to take up bills supporting paid family leave, help with childcare, and even perinatal hospice for babies given a difficult prenatal diagnosis. A party with a pro-life caucus member who tried to pressure his mistress into having an abortion. And in our current moment, we have aligned ourselves with a president who was willing to sacrifice children at the border in favor of his immigration policy, and to use the Bible as a public-relations prop. The damage done to the pro-life movement by its partnership with Trump will take decades to undo.
And yet, Lucy beckons us back toward the football one more time. The president says he has a new and better list of Supreme Court nominees for us. And aren’t we, once again, just “one justice away” from overturning Roe and Casey?
Enough. It is time for the pro-life movement, finally, to learn a difficult lesson. We need a new strategy. Many will rightly point to the decision in June Medical Services as the primary evidence for this, but the very same day the court also paved the way for the federal government to kill four Indiana men via the death penalty. For those looking to the court to defend the inherent and equal dignity of all human beings, it is long past time to take a hint.