First Test for Barrett-Era Court

News: Commentary
by Paul Murano  •  •  January 6, 2021   

Abortion case could be telling

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With new Supreme Court Justice Amy Coney Barrett in place, a new court case may soon show just how settled Roe v. Wade really is.

The case now before the High Court, Food and Drug Administration v. American College of Obstetricians and Gynecologists (FDA v. ACOG), will unveil how this new conservative-leaning court will vote on life issues as they relate to the Constitution. This case may further illustrate the trajectory of the Court and even provide an occasion for overturning Roe.

Interpretation Is Critical

Justice Barrett, in her introductory press conference with President Trump, made clear that as a judge she is made in the mold of constitutional originalist Antonin Scalia:

His judicial philosophy was straightforward: A judge must apply the law as written, not as the judge wishes it were. Sometimes that approach meant reaching results that he did not like.

But as he put it in one of his best-known opinions, that is what it means to say we have a government of laws, not of men.

A nation of laws rather than men must have a foundation on which laws coincide. All justices know this foundation is the Constitution; however, interpretation is where many of the differences between them lie.

Like the Bible, there are three basic ways to interpret the Constitution. Two are opposite extremes. As Aristotle taught regarding virtue, the good is usually found between the two extremes.

With all old texts, one can interpret the words according to some personal meaning perceived by a particular reader, a so-called present meaning or what the words meant to those who originally wrote them. The first interpretive method is fundamentalist, the second modernist and the third is what many call originalist.


Attorney Julia Kaye

(Photo: ACLU)

As most Catholic Bible scholars are originalists in relation to the Bible, Barrett and her mentor Scalia are originalists vis-à-vis the Constitution. With this most likely method, Barrett will not find anything in the U.S. Constitution — in the letter or the so-called penumbra of the words — that upholds the right to kill one's preborn offspring. This means, for originalists like Scalia and Barrett, the question of abortion must be dealt with by the states — not by the Supreme Court.

Weigh In on Regulations or Overturn?

It seems FDA v. ACOG does not directly and immediately threaten Roe. However, before Barrett was selected by Trump, attorney Julia Kaye, with the American Civil Liberties Union (ACLU) and lead counsel who challenged the FDA's regulation, warned the pro-abortion elites in America.

"It's clear that the future to the right to abortion is in serious peril, and our ability to get a safe, legal abortion is likely dependent on the next justice confirmed to the court," noted Kaye.

In short, the case before the Court now centers on whether the lower court was correct to halt a longstanding FDA requirement that Mifeprix, an abortion pill, can only be dispensed to women under the supervision of a certified healthcare provider in a hospital, clinic or medical office, and only after the patient signs a form acknowledging she has been informed of the the drug's risks.

"The FDA has made, and continuously adhered to, the judgment that these requirements mitigate serious health risks associated with the drug," the FDA argues in its brief, "which can increase if the patient delays taking the drug or fails to receive proper counseling about possible complications."

"The district court here nevertheless enjoined the enforcement of those longstanding safety regulations on a nationwide basis for the pendency of the COVID-19 pandemic," the FDA continued, "holding they pose an undue burden on abortion access under Planned Parenthood of Southeastern Pennsylvania v. Casey."

The lower court agreed with the defendants, which include pro-abortion groups, that access to child-killing must be made easier during the pandemic, thus its decision to halt the FDA's restrictions. 

The Trump administration stopped a directive from the FDA to allow women access to chemical abortion.

But the FDA provided evidence that their restrictions offered no undue burden on abortion, proven by the fact that the number of abortions increased during the pandemic rather than decreased.

According to Court watchers, there are one of three things that could occur with this abortion case: The Court could decide abortionists and abortuaries no longer have standing to challenge abortion regulations on behalf of their patients; it may declare new legal standards for evaluating such regulations; or the Court could use this case to re-evaluate the so-called right to abortion as unconstitutional.

Lineup of Cases Waiting

Even if abortion is left intact with FDA v. OCOG, three other cases on child murder have reached the Supreme Court and are waiting to be heard, with another 17 but one step away. The Court could use the present case as a harbinger to set up a more fundamental change in future cases.

Pro-abortion activists helped legalize abortion in Argentina

One of those cases waiting for the High Court to hear legal arguments is Mississippi's Heartbeat ban. A court of appeals had struck it down and indicated the reason was precedent. The court admitted preborn children with beating hearts cannot be protected from murder because an earlier ruling decided it was unconstitutional to do so.

"[A]ll agree that cardiac activity can be detected well before the fetus is viable. That dooms the law," it read. "If a ban on abortion after 15 weeks is unconstitutional, then it follows that a ban on abortion at an earlier stage of pregnancy is also unconstitutional."

A Sign of the Times

But it remains to be seen whether the newest version of the Supreme Court will begin to reverse the subtle barbarism gripping the United States. For better or worse, recent history has shown that as America goes, so goes the free world.

Argentina is the latest domino to fall under the international Culture of Death. It is yet another inevitable result of the Sexual Revolution begun with the pill.

If a ban on abortion after 15 weeks is unconstitutional, then it follows that a ban on abortion at an earlier stage of pregnancy is also unconstitutional.

It is easy to assess that when sex is depersonalized, so too is the natural end of sex: offspring. The two are morally linked in the human psyche; either both are sacred or neither are.

Many women formed in our post-1960s fornication culture cannot fathom having no "out" for potential pregnancies. It violates their warped sense of justice formed by the Devil and his minions. Depending on what happens on Jan. 5 and 6, the courts may be the only American institution left not controlled by the Luciferian Left. Pray and hope.

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