Supreme Court reveals stunning lack of principle in Texas abortion case

Dustin Romney  6/29/16

Every so often a Supreme Court case comes along that exposes how hopelessly unprincipled, inconsistent, and nonsensical the Court’s various fabrications have become. The Texas abortion decision was just such a case.

Yesterday the Supreme Court struck down a set of onerous Texas regulations designed to burden abortion clinics. The Court’s inconsistency, double standard, and lack of principle are simply stunning. One indicator of the bizarro world the justices live in is that in this case the so-called liberal justices appear to be champions of the free market. In striking down the regulations, the Court applied an “undue burden” test. Essentially, when it comes to abortion rights, the courts will strike down laws which place an undue burden on access to abortion services. The regulations caused the number of clinics in Texas to be reduced by half. That was too much of a burden on the abortion market for the court. The problem is not necessarily with the result of this ruling; it is with an indefensible double standard that protects abortion rights more vigorously than other rights such as the right to purchase a variety of other health care services and products.

When the Court considers a challenge to a law that infringes on a right to try a life-saving drug, or to build a home, or that regulates a business out of existence, the Court will apply the paltry “rational basis” test. That means that if the government can come up with any plausible-sounding argument, no matter how weakly supported by actual facts, the Court will nearly always uphold the law. In this case, the Texas legislature alleged that the law was designed to protect women’s health. Normally, the Court would apply rational basis to such an objective and rubber stamp the law. In such opinions, the court usually gives a lecture about judicial deference to legislative findings and “expertise.” Not so with abortion! In abortion cases the Supreme Court is suddenly endowed with an additional rush of wisdom that allows it to second guess the legislature and come up with its own findings – in this case finding actual facts to support the idea that the regulations actually did nothing to improve women’s health. Indeed, the court opinion includes a slew of statistics, reports, and findings related to the law.

So, according to the Supreme Court of the United States, regulations that put too much of a burden on access to abortion are unconstitutional, but laws that regulate out of existence life-saving drugs, medical devices, property rights, and entire industries present no constitutional problem. You can see why such rallying cries as “keep your laws off my body” and “my decision” ring rather hollow, as the same people holding such signs are mysteriously absent when the Court decrees that there is no right to try a non-FDA approved drug. The truth is that all such regulations should be strictly scrutinized by the courts. By virtue of their natural rights, people are entitled to a presumption of liberty, and government regulations that interfere with that liberty should be viewed as constitutionally suspect (liberty correctly understood as the right to do whatever does not tangibly or directly harm others). Insofar as a right to abortion exists (health concerns and coerced pregnancies), government does not have a right to infringe on that liberty. But the Court’s vigorous and gleeful protection of a right to abortion, while refusing to protect rights that allow people to accomplish a host of social benefits, reveals a disgusting double standard and a total dearth of principle. As Justice Thomas said in his dissent:

“Ultimately, this case shows why the Court never should have bent the rules for favored rights in the first place. Our law is now so riddled with special exceptions for special rights that our decisions deliver neither predictability nor the promise of a judiciary bound by the rule of law.”

Chalk this all up to one more reason why the Court needs to be corrected with Constitutional amendments.

First published at Rule of Law: http://www.foundersliberty.com/

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