The sharp divide on the Court continues today. In 2016, in the case of Whole Woman’s Health v. Hellerstedt, a 5–3 Court majority (there were only eight justices because Justice Scalia had passed away only a few months before the decision) ruled that the state of Texas could not legally enact the commonsense health protection measures the state signed into law in 2013. These measures included a requirement that abortion providers have admitting privileges at a hospital within thirty miles of the abortion facility, as well as a requirement that abortion facilities meet the same regulatory standards as outpatient surgical centers. Even under Roe, protecting the health of mothers was recognized as an important government objective. Although rules to ensure sanitary and safe medical conditions are ubiquitous outside of the abortion context, the Court nonetheless ruled that those same safety regulations created an “undue burden” under Casey that violated a woman’s right to procure an abortion.
This past summer, the Court had the opportunity to revisit its erroneous Whole Woman’s Health decision, in the case of June Medical Services v. Russo, which considered a Louisiana statute almost identical to the Texas statute that had been struck down. By now, Justice Scalia’s vacancy had been filled by Justice Gorsuch, and Justice Kennedy had been replaced by Justice Kavanaugh. The simple math meant that the previous 5–3 vote to strike down the Texas law would now presumably be a 5–4 vote to uphold the law.
But, alas, that was not to be. Chief Justice Roberts, who had voted in dissent in Whole Woman’s Health, switched his vote and voted to strike down the Louisiana statute. Although not one iota of his legal reasoning had changed from four years earlier (and, obviously, the text of the Constitution had not changed), Roberts now joined the four liberal justices and ruled that under stare decisis (respect for previously decided precedents), both laws should be struck down. Sadly, stare decisis often seems to be a one-way ratchet; so-called conservatives (although Roberts is becoming less and less of one) willingly perpetuate lawless left-wing precedents, while liberals happily and reliably vote to overrule conservative precedents. The Court’s vote in June? 5–4. One vote away.
The growing extremism of elected Democrats on the issue of abortion seems to know no bounds. Medical science has advanced considerably in the nearly fifty years since Roe. We now know that unborn children feel pain in the womb as early as twenty weeks into gestation, and sonograms reveal their writhing in agony during late-term abortion procedures. Nevertheless, when Congress has voted to prohibit abortions after twenty weeks’ gestation time, nearly every Senate Democrat (all but three, in 2018) has voted against that prohibition.
Even more ghastly, just this year, Congress voted on the Born-Alive Abortion Survivors Protection Act, which provided that if, in the course of an abortion, a child is born alive—as in, that child is outside the womb, breathing, crying, separate, and apart from its mother—then the physician must provide medical care to that child and cannot simply allow the child to die. Once again, all but three Senate Democrats voted against protecting the lives of infants already born alive. Reviewing the horror of Kermit Gosnell, it is wholly appropriate for the American people to ask who could possibly take such a vote.
Perhaps the most vivid illustration of the radicalization of today’s Democrats on abortion can be seen with Virginia Governor Ralph Northam. Northam gained international infamy when his medical school yearbook page was discovered with a photograph of a white man dressed in blackface standing next to another man dressed in a KKK robe. When the news broke, Northam apologized for the racist picture on his page and explicitly acknowledged that he was one of the two men in costume (although he didn’t say which one). The next day, he changed his mind and said he didn’t think he was one of the two men in the photo. Although the media went into a frenzy because he might have appeared in blackface, very little attention was paid to Northam’s initial acknowledgment suggesting it could have been him in the Klan robe instead.
Any elected official (or anyone else) should be able to say, unequivocally and without hesitation, “I have never worn a KKK robe.” Yet nobody in the media seemed to care that the (still sitting) Democratic governor of Virginia—a state with a tragic record on race relations—could not make that straightforward statement.
Prior to the Klan scandal, Northam had made waves for his extremism on abortion. He himself is an obstetrician, and in a 2019 radio interview he defended Virginia legislation that would allow abortion even up to and during labor while delivering the child. Northam then described the approach he believed a doctor should take if a child was born alive in the course of an abortion:
If a mother is in labor, I can tell you exactly what would happen. The infant would be delivered. The infant would be kept comfortable. The infant would be resuscitated if that’s what the mother and the family desired, and then a discussion would ensue between the physicians and the mother.
Listening to that radio interview, what’s so disconcerting is the total calmness in his voice. Like he’s describing the weather outside. Hannah Arendt wrote powerfully of the “banality of evil.” With that same banality, utterly without emotion, Northam describes having a “discussion” about whether to sit back and let a newly born infant—fully born, outside the womb—simply die.
Earlier this year, the Senate took up the Born-Alive Abortion Survivors Protection Act, legislation to ban what Northam had described, denying medical care to newborn infants. At a Senate Judiciary Committee hearing, I spoke in support of what should be commonsense legislation:
The topic of this hearing, in my view, should not be the subject of
