Category Archives: abortion

Bowen v. Kendrick

487 U. S. 589

June 29, 1988

In the Adolescent Family Life Act (AFLA), Congress allowed grants to be given to organizations for the education of children. The children would be encouraged toward premarital chastity and adoption instead of premarital sex and abortion. Grant applicants were required to state how they could involve religious organizations (among other community organizations) in the program). Some religious affiliated groups received grants, and some allegedly used the grant money to teach religious doctrines about sex and pregnancy to children. The AFLA was thus attacked both facially and as-applied.

The Supreme Court upheld the act 5-4. Rehnquist considered the facial challenge first, under the Lemon test. It had an obvious secular objective, and it did not illicitly advance religion. Though the statute referred to religious organizations, they were merely among many community players to be brought in for the education of children. Even though funds sometimes went directly to religious organizations, this had been allowed in other cases, such as aid to Catholic hospitals, or aid to nominally religious colleges. Looking at the record, Rehnquist did not think most grant recipients could be described as ‘pervasively sectarian’ in the way that parochial elementary schools were. Although the law did not specifically prohibit teaching religious doctrines, Rehnquist trusted grant recipients to abide by the Constitutional separation of church and state, and noted that recipients had to check in with the government from time to time.

Rehnquist summarily added that these check ins would not result in excessive entanglement – the final, much maligned Lemon prong. Finally, he turned to the as-applied challenge, and said that a remand would be necessary to determine which grant recipients had actively taught religious doctrines. O’Connor, in concurrence, denied that the Court was retreating from a strong commitment to the Establishment clause. Kennedy, joined by Scalia, noted that even ‘pervasively sectarian’ organizations should be able to receive grant money so long as they refrained from using it to teach religious doctrines.

Blackmun, joined by Brennan, Marshall, and Stevens, wanted to strike the law down altogether. He felt that discrete violations on the record should be considered in a facial challenge, and that any law which so easily allowed for the smuggling in of religious teaching should be struck down. He argued that the majority found, without proper analysis, that most recipients were not ‘pervasively sectarian,’ and that the record suggested the opposite. He noted that the Court had usually required much stronger safeguards against money flowing to any religious teaching, and that the statute’s lack of a ban on religious teaching was inexcusable. He contended that the education of young children was much different than a hospital healing the sick, or even a college teaching less impressionable minds. Finally, he showed that policing grant recipients to ensure that no religious doctrines were imparted would certainly involve excessive entanglement.

Here is another case where the dissent was definitely right on what the various precedents had established, but I would still vote with the majority because those precedents are wrong and stupid. I wish the majority had the courage to overrule the entire Everson-Lemon line, but they didn’t. Instead, we got yet another confusing and contradictory twist in the miserable world of Establishment clause jurisprudence – albeit one that at least had the correct final result.

Ever since Everson, the Court’s liberals have displayed a fierce, sickening, and (I dare say it) religious sort of mania in Establishment clause cases. Here, for example, Blackmun speaks of the Court’s duty to show “unwavering vigilance” in any cases potentially involving government money going to religious activity (just try to imagine a liberal Justice talking about “unwavering vigilance” with respect to, say, the Interstate Commerce clause). He exhorts the reversed District Court judge to “not grow weary” on remand, after all his noble “labors thus far.” Liberals don’t use this really creepy tone for any clause other than the Establishment clause. They despise the God of Israel with a passion, and despise the very thought that even a single cent of tax money might accrue, however remotely or indirectly, to His honor.

The AFLA is one of those very rare pieces of government legislation that truly fights evil. There is not a single social phenomenon more destructive to contemporary civilization than premarital sex. When it comes to generating more abortions, more divorces, more poverty, more sexual assaults, more broken hearts, and more souls turned away from God, nothing else even comes close. For decades, our culture has been poisoned unto death by the lie that sex before marriage is no big deal. The AFLA was one of the few initiatives which actually fought back against the lie.

Frisby v. Schultz

487 U. S. 474

June 27, 1988

A large group of pro-life activists peacefully picketed the home of an abortion doctor for several days, until the town passed an ordinance to ban residential picketing. The ordinance was passed with the expressed intent of protecting people in their homes from unwanted psychological harassment. The pro-life activist sued to have this ban struck down by the First Amendment. They argued in a facial challenge that it was overbroad, not narrowly tailored, and not written in service of a compelling interest.

The Supreme Court ruled 6-3 that the ordinance could survive a facial challenge. O’Connor once again slapped down an especially asinine justiciability argument, and moved to the merits. Because it targeted speech on the public fora of roads and sidewalks, the ordinance would have to meet strict scrutiny. Lower courts said the ban was content neutral, and O’Connor interpreted the statute to ban only picketing in front of a single residence, and not mobile picketing throughout an entire residential area. So interpreted, the ban was not overbroad, and O’Connor found that protecting people in their home from unwanted messages was a compelling interest. And because the Court construed the ban to only apply to picketing at a single house, O’Connor felt the ordinance was narrowly tailored to meet the harm it purported to address.

White, concurring in judgment, did not like how the majority unilaterally interpreted the ordinance to not apply to mobile picketing throughout a larger residential vicinity. He thought the ordinance might have a broader reach, but ultimately felt that it was still barely within the limits of constitutionality. Stevens, dissenting, felt the ordinance was overbroad becaue it could, literally read, forbid a kid from holding a sign that said “GET WELL CHARLIE – OUR TEAM NEEDS YOU.” Brennan, joined by Marshall, did not think the ordinance was narrowly tailored. If the state wished to protect people in homes from being harassed, it could allow some picketing, but limit the crowd size, time duration, and noise level. That would serve the compelling interest while suppressing the least amount of speech.

This is, without a doubt, the worst abortion ruling ever made by a conservative majority. O’Connor’s opinion has some shocking language that I can hardly believe Scalia joined. She charged the pro-life activists with behaving in “an especially offensive way.” She was horrified by the “devastating effect” the picketing had on “the quiet enjoyment of the home.” Furthermore, she contended that “the offensive and disturbing nature” of the behavior “could scarcely be questioned.”

Evil loves darkness and hates light because it loves to stay hidden, and hates exposure. The brave pro-life activists were piercing the darkness and exposing evil when they picketed the doctor’s house. The town had a right to know of the serial murderer in its midst, and of his quiet life free from any legal trouble. An intense spotlight was shone on the banality of evil. The town council, loving darkness, and hating the light, twisted justice, and passed an ordinance to silence the latter day prophets. The lonely voices crying in the wilderness were made lonelier still.

Let’s be clear – if you’re a doctor who murders babies, you have no right to complain of emotional trauma and harassment when a light is shone on your demonic barbarity. When you have so much blood on your hands, you have forfeited the right to comfort and peace in your home. God detests nations that spill innocent blood.

United States Catholic Conference v. Abortion Rights Mobilization, Inc.

487 U. S. 72

June 20, 1988

An abortion rights group sued the IRS to get the Roman Catholic Church’s tax exempt status revoked. It served a subpoena on the United States Catholic Conference, demanding evidence to be used in the suit. The Catholic Conference refused, and the court held them in contempt. The Conference challenged the contempt on the grounds that the court had no subject matter jurisdiction in the underlying suit. The question before the Supreme Court was whether a non-party witness could challenge a contempt ruling because of an alleged lack of subject matter jurisdiction.

The Court ruled 8-1 that such a challenge could be mounted. As Kennedy explained, subject matter jurisdiction was absolutely fundamental to all workings of any Article III court. Without such jurisdiction, any and all actions of the court were absolutely void. An old precedent about grand juries was easily distinguished, and concerns that challenges to jurisdiction might be abused were brushed aside as irrelevant. Anyone, even a non-party witness, was allowed to point out that the court had no legal grounds for being in session. Marshall dissented, and did the ‘read what the lower court judge said’ thing in lieu of explaining why.

The Court’s decision was obviously correct; elementary in fact. The underlying legal dispute though, is the very face of evil. Not content with murdering babies, the abortion rights group was trying to cripple the Catholic Church for daring to speak up in defense of those babies. If anyone wants to know why Donald Trump has pledged to overturn the horrific Johnson amendment on religious involvement in politics, this is the reason why.

Civil politics is an intrinsically spiritual domain. The nation who uses its laws to honor God and do good is blessed. The nation who uses its laws to dishonor God and do evil is cursed. It is Christian churches, above all other organizations, who ought to be involved in civil politics the most. No other group is so well equipped to discern when a legal policy is murderous and reprobate. Back in the late 1960s, when states first began legalization abortion for rape, incest, and birth defects, the Catholic Church stood almost alone in opposition. They alone perceived the beginning of a great genocide, and they alone raised the prophetic voice of alarm.

God will judge America one day for its legal system’s open embrace of sin. And God will also judge those who tried to cripple and silence the lonely voices in the wilderness who tried to fight back.

Hartigan v. Zbaraz

484 U. S. 171

December 14, 1987

An Illinois law required a minor to wait 24 hours before having an abortion. A circuit court declared this provision unconstitutional, and the Supreme Court affirmed in a tie vote. In tie votes, the lineup of the Justices is not revealed, but with greater than 90% certainty, we can guess that it was Brennan, Marshall, Blackmun, and Stevens to affirm, and Rehnquist, White, O’Connor, and Scalia to reverse. This tie vote underscored the importance of the incoming ninth Justice. In fact, the nomination hearings on Anthony Kennedy began on the very same day!

The most notable thing about this case is how strongly it suggests that the Court did not want to have a full-blown abortion decision. By December 14, the Court surely knew that Kennedy would be confirmed, and would join in the near future. And indeed, just as Kennedy was joining, Illinois asked for the case to be reheard. The request was denied. Three other cases during the term would confront abortion at the edges, but it wasn’t until 1989 that the Court would be forced to have a full-blown decision on the issue.

Puerto Rico v. Branstad

483 U. S. 219

June 23, 1987

While in Puerto Rico, Ronald Calder killed a woman and her unborn baby by running his car over them. After promising not to leave before trial, Calder fled to Iowa and successfully convinced the governor to block his extradition (Fun fact! Terry Branstad is still Governor of Iowa nearly three decades later). Puerto Rico said that federal law gave Iowa no right to refuse an extradition request, but a Supreme Court case from 1861 called Dennison held, on the grounds of federalism and states rights, that federal courts had no constitutional power to enforce extradition when a state refused.

Unanimously, the Court ordered Iowa to hand over Calder under the federal law. Marshall wrote the decision, which unceremoniously overruled Dennison. Its extreme states rights logic had not been followed by the Court in other contexts in the ensuing century, and there was no reason why extradition should continue remain an exception. As an aside, Marshall noted that the extradition clause of the Constitution itself imposed a mandatory, non-discretionary duty. While the extradition clause arguably did not apply to Puerto Rico, a territory, the federal law included territories by its express terms. O’Connor, joined by Powell, declined to join the aside about the extradition clause, finding it unnecessary. Scalia concurred in judgment. He blandly noted that the extradition law could potentially be unconstitutional, but abstained from exploring the possibility further because no party had argued it.

Probably the most interesting aspect of this case is Justice Marshall’s casual use of the words “unborn child” to describe one of Calder’s victims. No insistent use of terminology like ‘fetus’ or ‘product of conception’ here! Neither is there an evasive declaration that “[w]e need not resolve the difficult question of when life begins. When those trained in the respective disciplines of medicine, philosophy, and theology are unable to arrive at any consensus, the judiciary, at this point in the development of man’s knowledge, is not in a position to speculate as to the answer.” No – here in this case, Marshall and company accidentally let the mask slip, and told the truth.

And that is the most horrifying thing of all: despite professed agnosticism elsewhere, Marshall and the other Justices actually do understand completely that a baby is killed by abortion. “Woe to those who call evil good, and good evil; who substitute darkness for light, and light for darkness” – Isaiah 5:20.

Federal Election Comm’n v. Massachusetts Citizens for Life, Inc.

479 U. S. 238

December 15, 1986

Federal law made it illegal for any corporation to make any expenditures on political elections, unless they set up a special political committee with segregated financing. Massachusetts Citizens for Life (MCFL) was a pro-life group that incorporated itself as a non-profit to do its work. In 1978, MCFL published a voter guide that listed the positions of the candidates in the upcoming election on the abortion issue. The FEC brought action against MCFL for distributing this guide, and MCFL contested the application of the federal campaigning law in court.

The Court ruled 5-4 that the law was unconstitutional as applied to MCFL, because it unreasonably restricted the group’s right to free speech. Brennan wrote for the majority. First, he rejected arguments that publication of the guide was not an “expenditure” within the law’s meaning, and that the guide was not intended as a call to vote for certain candidates. Even the four dissenters agreed with those conclusions. Nonetheless, Brennan thought that the law swept too broadly with respect to MCFL, and thus ruled against the FEC.

He explained that campaign finance restrictions on corporations were intended to keep corporations from using massive company profits to disproportionately impact the political process, and also intended to prevent the use of a customer’s money on a cause he might disagree with. Because MCFL was a non-profit, and actually dedicated to the pro-life cause, the goals behind the law did not apply. Brennan also showed that setting up the special political committee provided for in the law would be extremely burdensome for MCFL, and might operate in a chilling fashion on their speech rights.

Brennan’s discussion on that last point was not joined by O’Connor, who wrote a concurring opinion explaining why. Reading it though, I still can’t figure out where it is that they actually disagree. Rehnquist wrote a dissent, and he was joined by White, Blackmun, and Stevens. Its basic gist was that Congress very clearly intended its law to apply to all corporations, and that prior Court decisions had usually not exempted organizations from campaign finance restrictions just because a particular application bore little relation to the law’s underlying goals. White, a staunch adherent to precedent, joined Rehnquist’s dissent even while noting that he had originally disagreed with many of those previous rulings.

This case feels like something out of a bizarre parallel universe. A hyper-liberal Justice writing a majority opinion against a campaign finance law? When the target of the law’s application was a pro-life organization!?? I’m starting to think that some of today’s great political fault lines weren’t quite so set in stone back then. As for the decision itself, I think Brennan got it right; the First Amendment values at stake do trump precedent and Congressional desire for uniformity. Also, maybe I’m just paranoid, but I can’t help but wonder if the FEC deliberately decided to target MCFL because of its pro-life views. It certainly wouldn’t have been the first or last time that a government agency bullied the right to life movement.