The Judges Trying to Give Abortionists a Free Pass

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“The Constitution does not prohibit the citizens of each State from regulating or prohibiting abortion. Roe and Casey arrogated that authority. We now overrule those decisions and return that authority to the people and their elected representatives.” 

These concluding words from Justice Samuel Alito’s majority opinion in Dobbs v. Jackson Women’s Health Organization unequivocally affirmed the return of democracy’s role in molding abortion policy. 

Sadly, state and federal judiciaries are comprised of activist judges who won’t let the Supreme Court of the United States frustrate their efforts to protect elective abortion. The judicial resistance has begun.

Dobbs was never going to be the finale of the Pro-Life movement. Returning abortion policy to the democratic processes merely ignites animated battles in legislative chambers across the nation. And even where abortion is fully banned—like in Texas, or elsewhere in the South and Midwest—the struggle to build a fully Pro-Life culture and legal regime persists. Addressing the needs of families, constructing strong enforcement mechanisms, and combatting an increasingly underground abortion industry have become immediate and acute concerns. 

Rather than being the end of the line, Dobbs was instead a necessary precondition to transition to the next phase of the Pro-Life movement. 

For 49 years, the judiciary preempted our ability to pursue justice for preborn children and their mothers. Tragically, the Supreme Court can’t erase that sort of corruption in one sweeping ruling. For decades now, the progressive legal establishment’s disdain for fair and neutral procedures has ballooned. Law students have developed, absorbed, and come of age in this environment. They’ve since become associates and partners, clerks, and litigators. And when the opportunity arose, they ran for office or obtained a prestigious appointment as a judge responsible for adjudicating the legal controversies that arise out of our most heated culture wars. 

Now-deceased Stephen Reinhardt, who served on the United States Court of Appeals for the Ninth Circuit, put it succinctly: “If [the Supreme Court]want[s]to take away rights, that’s their privilege. But I’m not going to help them do it.” 

One-time activists now populate the benches in the most critical civil courthouses nationwide. Is Dobbs really going to quash their ambition?

The answer, of course, is no. They have no desire to help the Supreme Court give states the power to ban abortion. They have no plan to respect the duly enacted state laws against abortion. To do so would be to subvert their own worldview of justice—irrespective of what the Supreme Court might say. And they are already jumping into action.

In Louisiana, a state district judge granted a temporary restraining order (TRO) against the state’s trigger bans, which banned all elective abortions once the Supreme Court reversed Roe v. Wade, as it did in Dobbs. The judge, Robin Giarrusso of the New Orleans Civil District Court, determined Louisiana’s law had an ambiguous effective date and therefore did not adequately provide proper notice to the affected parties. 

This determination is rather curious. First, the plaintiffs, by filing the lawsuit just after the law went into effect, seemed to understand precisely when the law went into effect. They made that transparent simply by filing the lawsuit in the first place. 

Second, the language of the bill is pretty straightforward. Is there any person who works in the abortion industry who does not comprehend what “any decision of the United States Supreme Court which reverses, in whole or in part, Roe v. Wade”—the exact language of Louisiana’s trigger lawmeans? Likewise, is there a single person who works in the abortion industry who does not know the Supreme Court fully reversed Roe in June? The answer is obvious, but so too is the reason why the judge entered the TRO.

The same is happening at home in Texas. Last week, state district judge Christine Weems in Houston blocked the enforcement of the State’s pre-Roe prohibitions on elective abortion. She theorized that Texas repealed these laws by implication because the Texas Legislature has since passed other restrictions on elective abortion. This theory—in which Texas never repealed explicitly the pre-Roe laws but otherwise meant to—is, to put it charitably, absurd and ad hoc. 

The Texas Legislature had every opportunity to repeal these laws but chose not to. It could have done so under Democratic rule. It could have done so under Republican rule. It could have done so under a divided government. But it did not, instead choosing to pass an array of abortion restrictions that were plausibly enforceable under the Roe and Planned Parenthood v. Casey regime. 

Further, the very same government that the abortion industry and judge assert repealed the pre-Roe laws by implication passed a bill (the Texas Heartbeat Act) that in part read, “the legislature finds that the State of Texas never repealed, either expressly or by implication, the state statutes enacted before the ruling in Roe v. Wade, 410 U.S. 113 (1973), that prohibit and criminalize abortion unless the mother’s life is in danger.” These words, unlike the “implied” effects of other laws, are quite clear. 

Yet, Judge Weems doesn’t want Texas to ban abortion, so she had to invent some pre-textual rationale for the TRO.

Fortunately, two factors dampen the impact of the TRO. First, Texas’ prohibitions against homicide make abortion illegal, and the TRO was limited to the pre-Roe statutes. Second, while the abortion industry could cherry pick a favorable venue at the district level, they won’t be able to do so as Texas appeals the decision. 

The Supreme Court of Texas—to which Attorney General Ken Paxton appealed the decision—is the final arbiter of state civil matters, and uniformly Republican. The Supreme Court of Texas has already shown their unwillingness to bend the law as grotesquely as Judge Weems did, overturning the TRO and allowing the pre-Roe statutes to remain in effect and enforceable while the case proceeds. 

Still, the brazen acts of Judge Giarrusso in Louisiana and Judge Weems in Texas are not isolated enigmas. They are part of a larger pattern of progressive judges imposing their beliefs by fiat—even when it appears external events have deprived them of all of their favorite legal tools. Dobbs may have endeavored to remove the courts from abortion policy entirely. But with an unscrupulous cohort of judges waiting in district courts nationwide, we can’t retreat entirely to the state legislatures just yet. 

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