Gorsuch Dissent Cites Religious Liberty As Supreme Court Allows New York Vaccine Mandate

The US Supreme Court on Monday ruled in favor of New York's COVID-19 vaccine mandate for health care workers. The mandate allows exemptions for medical reasons but not religious ones. Gorsuch wrote a dissent criticizing the Court for violating the religious liberty rights of those who object to the currently-available COVID-19 vaccines for their connection with abortion.

The court decided 6-3 to reject the requests of health care workers who filed petitions to the Supreme Court for religious exemptions. Chief Justice John Roberts and Justices Amy Coney Barrett and Brett Kavanaugh sided with Stephen G. Breyer, Elena Kagan, and Sonia Sotomayor in the majority. Justices Samuel Alito, Neil Gorsuch, and Clarence Thomas dissented. Only Gorsuch wrote an opinion, with which Alito joined.

“The Free Exercise Clause protects not only the right to hold unpopular religious beliefs inwardly and secretly. It protects the right to live out those beliefs publicly in ‘the performance of (or abstention from) physical acts,’” Gorsuch wrote in his dissent.

The Supreme Court refused to block a similar mandate in Maine during a ruling in October.

“Six weeks ago, this Court refused relief in a case involving Maine’s healthcare workers,” Gorsuch wrote. “Today, the Court repeats the mistake by turning away New York’s doctors and nurses.”

Gorsuch criticized New York Gov. Kathy Hochul's handling of the mandate in his dissent.

“The new Governor announced that the decision to eliminate the exemption was ‘intentiona[l]’ and justified because no ‘organized religion’ sought it and individuals who did were not ‘listening to God and what God wants.’ Now, thousands of New York healthcare workers face the loss of their jobs and eligibility for unemployment benefits.”

“Twenty of them have filed suit arguing that the State’s conduct violates the First Amendment and asking us to enjoin the enforcement of the mandate against them until this Court can decide their petition for certiorari. Respectfully, I believe they deserve that relief.”

Gov. Hochul, much like pro-abortion President Joe Biden, identifies as Catholic. 

“These applicants are not ‘anti-vaxxers’ who object to all vaccines,” Gorsuch wrote. “Instead, the applicants explain, they cannot receive a COVID–19 vaccine because their religion teaches them to oppose abortion in any form, and because each of the currently available vaccines has depended upon abortion-derived fetal cell lines in its production or testing.”

37,000 New York healthcare workers have left their jobs as a result of the mandate. New York Gov. Kathy Hochul had to call on the National Guard to assist short-staffed nursing homes.

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Arizona Asks Supreme Court for Reinstatement of Pro-Life Law

Arizona Attorney General Mark Brnovich asked the Supreme Court on Tuesday for an emergency order reinstating a law that bans discriminatory abortion based on genetic abnormality (such as Down syndrome).

In his brief to the Supreme Court, Brnovich wrote, “This court has never otherwise recognized the purported right at issue — a right to race-, sex-, or genetic-selective abortions. The right to perform an abortion based solely on the results of genetic testing is novel, with no basis in the Constitution’s text or the nation’s history and traditions.”

The Arizona law was blocked by Federal Judge Douglas Rayes, an Obama appointee, just eight hours before it would have gone into effect. Rayes denied Arizona's request in September to stay the injunction, and the 9th Circuit Court of Appeals did the same last month.

Supreme Court Justice Elena Kagan will decide whether the Court accept the emergency request.

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Federal Court Denies Biden's Request to Reinstate Vaccine Mandate for Doctors

The 8th Circuit Court of Appeals on Monday denied an emergency motion by the Biden administration to end a lower court's injunction blocking the administration's COVID vaccine mandate for healthcare workers.

The lower court blocked the mandate in ten states, including Alaska, Arkansas, Iowa, Kansas, Missouri, Nebraska, New Hampshire, North Dakota, South Dakota, and Wyoming. A federal judge from Louisiana enjoined the mandate nationwide in a separate ruling in November.

The Biden administration is attempting to use the Centers for Medicare and Medicaid Services (CMS) to force vaccination on medical professionals who work at facilities that participate in Medicare and Medicaid. If the administration gets its way, all medical doctors at these locations would have to either take a COVID-19 vaccine or lose their jobs. This is especially problematic for pro-life doctors who object to the currently available vaccines. All currently available vaccines utilized cell lines harvested from aborted children during research and/or production.

The ruling from US District Judge Matthew T. Schlep blocked the Biden mandate, calling it “likely an unlawful promulgation of regulations.” In his ruling, Schlep wrote:

“CMS seeks to overtake an area of traditional state authority by imposing an unprecedented demand to federally dictate the private medical decisions of millions of Americans. Such action challenges traditional notions of federalism. Congress did not clearly authorize CMS to enact... this politically and economically vast, federalism-altering, and boundary-pushing mandate, which Supreme Court precedent requires.”

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Abortionist Suggests ER Doctors Should Falsify Records to Hide Abortion Complications

In a recent article published by Salon writer Amanda Marcotte, Dr. Daniel Grossman recommended that ER doctors should prepare for a post-Roe world by hiding abortion complications from law enforcement.

In the article, Grossman suggested that law enforcement in pro-life states would use the medical records of post-abortive women to prosecute them, and medical professionals should falsify records as a result.

Marcotte wrote, “Dr. Grossman also suggested that doctors themselves need to be educated on how to better protect patients. Once abortion is banned, [Grossman] notes, ‘some of this is going to fall on emergency department clinicians,’ because patients who show up with rare complications — or, in some cases, are just worried — after taking abortion pills at home.”

Marcotte also quotes Grossman as saying, “We need to get better about really figuring out what questions we need to ask and what we need to document in the medical record.” Grossman expressed concern that “the medical record could be used against the patient to potentially prosecute them.”

Grossman has even suggested that women should go as far as to order abortion pills before they become pregnant. In a Tweet on Oct 14, Grossman said that having abortion pills should be "like having Tylenol in the cabinet for a headache, cramps, or painful injury."

Grossman's suggestions endanger the lives of women. If a woman's medical record is falsified, then doctors who treat that woman in the future will have incomplete knowledge of that woman's medical history. This can make it harder to provide potentially life-saving health care.

If a woman takes the abortion pill regimen without first visiting a doctor to verify the gestational age of her unborn child or diagnose any pregnancy conditions such as ectopic pregnancy, then she is at high risk of suffering severe and life-threatening complications.

An unborn child is not an injury or sickness to be treated with medicine. An unborn child is an innocent human being, and their lives deserve protection.

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FDA Commissioner Nominee Questioned by Senators Over Abortion Pill Expansion

Robert Califf
photo credit: Christopher Michel / Flickr

On Dec. 14, the US Senate Committee on Health, Education, Labor, and Pensions held hearings to discuss whether it should approve Biden nominee Robert Califf to become the new Commissioner of the FDA.

Califf previously served as the FDA commissioner under former President Obama. In 2016, under Califf's direction, the agency extended the use of the abortion pill regimen. This allowed abortionists to prescribe abortion pills to end the lives of unborn children up to ten weeks old (up from seven).

During a hearing, Indiana Sen. Mike Braun referenced a recent study that used Medicaid data from 17 states that allow taxpayer-funded abortions. That study found that the rate of abortion-related ER visits following use of the abortion pill increased 507% from 2002-2015.

Referencing the fact that Califf relaxed regulations governing the use of abortion pills during the previous time he acted as FDA commissioner, Braun asked Califf, “Do you think we need to be in that relaxed kind of interpretation of that particular approach or is this something you’re going to listen to current information… so that you give… a full kind of consideration of that particular methodology of abortions?”

Califf refused to discuss his past decisions or speak about whether he believed abortion pill regulations should be loosened further. Instead, he talked about how the FDA was currently reevaluating its rules governing the prescription of abortion pills. “I’m not involved in that particular reevaluation, but I can assure you that the staff will be looking at the latest data and applying the best science and make the best possible decision,” Califf stated. “I’ve got confidence in that staff, and I know them well.”

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Texas Right to Life Receives Second Bomb Threat Since Passage of Texas Heartbeat Act

After the Texas Heartbeat Act became law in September, Texas Right to Life has received a barrage of hateful threats. Last week, the organization received its second bomb threat.

Texas Right to Life said that it had "spearheaded" the pro-life legislation, and it had also created a website that would make it easier for Texans to report violations of the Heartbeat Act. Under the law, private citizens could file lawsuits against those who participate in the abortions of unborn children with detectable heartbeats.

The organization stated that they received a letter on Dec 6 in which the sender threatened to bomb the Texas Right to Life facility for promoting the Heartbeat Act. Police are investigating the threat.

“Devaluing life inside the womb inevitably leads to violence outside the womb,” Texas Right to Life President Elizabeth Graham stated in an email. “These recent crimes demonstrate the brokenness, anger, and pain of the pro-abortion movement. We pray for the perpetrator, that he or she may find healing in Christ, and we ask for prayers for our staff.”

This is the second bomb threat received by Texas Right to Life. The first came in September just days after the Heartbeat Act was enacted. Days later, the group received a mysterious package that some suspected to be a bomb. Police responded and found the package to not be harmful, but the organization should not have to live in fear. Texas Right to Life received thousands of voice messages in the aftermath of the Heartbeat Act's passage, many of them wishing death and rape upon staff members.

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IL Rep Withdraws Attempt to Force Insurance Companies to Discriminate Against Unvaccinated Illinoisans

IL State Rep. Jonathan Carroll

Last week, IL State Rep. Jonathan Carroll introduced a bill that would force unvaccinated individuals to pay their own medical bills if they were hospitalized with COVID-19, even if they had health insurance. The bill was unpopular that he filed a motion to table the bill three days later.

As summarised on the official webpage for the Illinois General Assembly, HB4259 would have required that "that a group or individual policy of accident and health insurance that is amended, delivered, issued, or renewed on or after January 1, 2023 shall provide that a person who is eligible to receive a COVID-19 vaccine and chooses not to be vaccinated shall pay for health care expenses out-of-pocket if the person becomes hospitalized because of COVID-19 symptoms."

Many pro-life advocates oppose the currently available COVID-19 vaccines due to their connection with abortion. All available COVID-19 vaccines made use of cell lines harvested from aborted babies during their research and/or production phases. Pro-life individuals, many of whom refuse to take the vaccine for that reason, would have faced severe discrimination if this bill had been passed into law.

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Supreme Court Again Allows Texas to Enforce Heartbeat Act for Now

On Friday, Dec. 10, the US Supreme Court issued two decisions regarding Texas's Heartbeat Act. One of those allows the law to remain in effect while federal courts rule on its limited state enforcement through licensing boards. The other dismisses a challenge by the Biden administration against the State of Texas.

The Heartbeat Act prohibits the abortion of unborn children whose heartbeats are detectable, which usually occurs at 6 weeks gestation. The law has managed to remain in effect so far due to its unique enforcement mechanism. Rather than direct enforcement by state officials, the law is enforced through civil lawsuits. Individuals can file lawsuits against those who participate in the abortions of protected children.

The Supreme Court's decision has again allowed the Heartbeat Act to remain in effect. The decision also denied federal courts' requests to enjoin the law. The Court is allowing abortion businesses to challenge state enforcement of the law which occurs through professional licensing boards, but the Court took issue with many of those named in the lawsuit. The Court opined that abortion clinics could not sue Texas clerks, judges, the Attorney General, or private citizens who had not declared any intention to file lawsuits under the Heartbeat Act.

In its second decision, the Court ruled 8-1 that the Biden administration did not have proper legal standing to challenge Texas's law.

The majority opinion, written by Justice Neil Gorsuch, stated that "the ultimate merits question" regarding the Heartbeat Act's constitutionality "is not before the Court." Because the Court did not directly rule on the constitutionality of the law, it is possible (likely, even) that it could come before the Supreme Court again. For the moment, however, it can continue to save the lives of unborn Texans.

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March For Life Chicago Returning Next Month

On January 8, over 10,000 pro-life advocates are expected to attend March for Life Chicago. At that event, supporters will rally to support protections for unborn babies.

Event organizers point out that Illinois is the "abortion capital of the midwest." Illinois policies not only create high rates of abortion among Illinoisans, they also draw women and girls from throughout the midwest to get abortions during any stage of pregnancy. Data from state health departments show that 46,517 abortions occurred in Illinois during 2019. That is more abortions than each of Illinois's neighboring states combined.

March for Life Chicago's organizers also point out that 7,534 of Illinois abortions that year were on residents from other states. This was an increase of 1,866 out-of-state abortions from 2018.

“While most of the Midwest works to respect the humanity of the unborn, Illinois tragically pushes abortion at any cost,” said Kevin Grillot, director of the March for Life Chicago. “The Illinois legislature’s repeal of the Parental Notice of Abortion Act shows that they would rather appease the abortion industry than respect parents’ rights to be involved in their children’s lives.”

Without the Parental Notice of Abortion Act, abortion businesses will no longer be required to notify minors' parents before they have abortions.

“The people of Illinois and across the Midwest will not sit back while radical Illinois legislators remove the rights of parents and unborn children. This is why a record-breaking number of people are responding to our call to save Midwestern lives and march in Chicago.” Grillot said. “On January 8 we will peacefully march to mourn the tragic loss of lives to abortion, call for the respect of every life, and inspire ongoing support of mothers who choose life!”

Events during March for Life Chicago will include a convention, diaper drive, youth rally, educational sessions, a Catholic Mass, a Lutheran gathering, and a banquet.

Click here to read more from the March for Life Chicago website.

Texas Law Restricting Abortion Pills Goes into Effect

On Thursday, Nov 9, another notable pro-life Texas law went into effect. This law restricts the use of abortion pills to the first seven weeks of pregnancy. At the same time, it bans the delivery of abortion pills through the mail.

These protections mirror restrictions that used to be placed against abortion pills by the FDA before the pandemic. Before then, FDA enforced a set of restrictions on abortion pill distribution called Risk Evaluation and Mitigation Strategies (REMS). Those restrictions required women to see medical professionals in person to receive prescriptions for abortion pills. Additionally, those prescriptions could not be sent through the mail. Under the Biden administration, those rules are on track to be removed permanently.

The Texas law states that “a manufacturer, supplier, physician, or any other person may not provide to a patient any abortion-inducing drug by courier, delivery or mail service.” The law also requires that an abortionist examine a woman in person before giving the prescription. The doctor must verify pregnancy, document the gestational age, and verify that there is not an ectopic pregnancy. In an ectopic pregnancy, the unborn child develops outside of the main uterine cavity. If a woman with an ectopic pregnancy takes the abortion pill regimen, she is at high risk of life-threatening hemorrhaging.

The law includes several other measures meant to ensure the safety of women who undergo chemical abortions. Click here to read more.

Dobbs v. Jackson: Sotomayor's Scientific (Un)truths on Fetal Pain

During the Dobbs v. Jackson Women's Health Organization oral arguments on Dec 1, several major ideas that will influence the judges' decision became clear. The IFRL is releasing a series of posts detailing those concepts so that pro-life advocates can know what is informing the court's upcoming decision in a case that has the potential to change the future of abortion laws in the United States.

Sotomayor's Scientific (Un)truths on Fetal Pain

Part of the discussions during the oral arguments included statements regarding the humanity of unborn children as known through scientific research. One such discussion involved the idea of when an unborn child is capable of experiencing pain.

Justice Sotomayor asked Mississippi Solicitor General Scott Stewart to explain why believed that "advancements in medicine" make the overturning of Roe v. Wade necessary. Stewart answered, “I think it is an advancement in knowledge and concern about such things as fetal pain, what we know the child is doing and looks like and is fully human very early.”

Sotomayor cut Stewart off, saying, “the minority of people, the gross minority of doctors who believe fetal pain exists before 24 or 25 weeks is a huge minority, and one not well-founded in science at all.” She continued, “So I don’t see how that really adds anything to the discussion, that a small fringe of doctors believe that pain could be experienced before a cortex is formed, doesn’t mean there has been that much of a difference since Casey.”

In another statement, Sotomayor suggested that the movement of a fetus recoiling from pain is similar to reflexes in dead bodies.

“Virtually every state defines a brain death as death. Yet, the literature is filled with episodes of people who are completely and utterly brain dead responding to stimuli,” Sotomayor said.

“There's about 40% of dead people who, if you touch their feet, the foot will recoil. There are spontaneous acts by dead brain people. So I don't think that a response to — by a fetus necessarily proves that there's a sensation of pain or that there's consciousness,” the justice said.

Justice Elena Kagan echoed Sotomayor's comments, stating that "not much has changed since Roe and Casey." Such statements ignore scientific developments that continue to point towards the humanity of the unborn.

Dr. Stuart Derbyshire, one of the world's leading neuroscientists, changed his stance on fetal pain in a peer-reviewed paper released in 2019. In that paper, he states that he believes fetal pain is possible "from as early as 12 weeks." Interestingly, Derbyshire's earlier work is cited by the abortion industry's brief in the Dobbs case. They did not acknowledge his more recent research, however.

The Charlotte Lozier Institute summarized scientific developments in this area when it called on the American College of Obstetricians and Gynecologists to reconsider their stance on fetal pain. In their statement, CLI wrote,

"For decades, most neuroscientists have operated by the axiom of ‘cortical necessity.’ This is the idea that a cerebral cortex – the thin, convoluted, outer layer of the brain that activates between 24 and 30 weeks’ gestation – is required to perceive pain. There has long been evidence to the contrary.  But accumulating studies, especially two from 2016, strongly imply that cortical necessity is incorrect: evidence shows subcortical (lower) brain structures that develop much earlier than 24 to 30 weeks are sufficient for pain perception."

Dr. Grazie Pozo Christie, M.D., who co-authored a science-based amicus brief in this case, responded to Sotomayor's statements in an interview with CNA.

“To compare an unborn child to a brain-dead person or a corpse flouts science which tells us that at 15 weeks gestation, a baby's organs are fully formed, her heart pumps 26 quarts of blood a day, and her lungs are already practicing drawing breath,” Christie said. “As recently as last year, doctors in the Journal of Medical Ethics wrote, 'Current neuroscientific evidence supports the possibility of fetal pain before the 'consensus' cutoff of 24 weeks' and may be as early as 12 weeks.”

“Not only does medicine agree that fetal anesthesia be administered for fetal surgery, a clear reflection of the medical consensus that unborn babies can feel pain, but like viability, the line marking when they feel pain continues to inch earlier,” Christie added.

Similar to the constitutionality of abortion, the science regarding the humanity of unborn children was not a major topic of discussion during oral arguments. Nonetheless, the humanity of the unborn child is at the center of the abortion issue. A unique human being separate from the mother and the father is created at conception, and that innocent human being deserves a chance at life.

Wisconsin Gov. Vetoes Five Pro-Life Bills

Wisconsin Gov. Tony Evers (D)

On December 3, Wisconsin Gov. Tony Evers vetoed five pro-life bills. He doubled down on his pro-abortion actions with a statement promising that he will veto all pro-life laws that come across his desk.

“I’ve said it before, and I’ll say it again today: as long as I’m governor, I will veto any legislation that turns back the clock on reproductive rights in this state — and that’s a promise,” he tweeted.

The five bills that Gov. Evers vetoed include:

• A bill that would require medical professionals to provide life-saving care to babies who survive an attempted abortion
• a bill that would prohibit abortionists from carrying out abortions that are decided due to the child's race, sex, or disability diagnosis
• a bill that would require doctors who identify congenital conditions to also provide educational resources about that condition and inform parents of supportive resources available to them
• a bill enhancing abortion reporting requirements for abortion businesses and requiring those businesses to inform women of abortion pill reversal when they begin the chemical abortion process
• a bill that would have reduced state funding of abortion businesses by preventing them from registering as a provider under Medicaid

This is the second set of pro-life bills Gov. Evers has vetoed since he became the governor.

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Dobbs v. Jackson: The Viability Standard

During the Dobbs v. Jackson Women's Health Organization oral arguments on Dec 1, several major ideas that will influence the judges' decision became clear. The IFRL is releasing a series of posts detailing those concepts so that pro-life advocates can know what is informing the court's upcoming decision in a case that has the potential to change the future of abortion laws in the United States.

The Viability Standard

A major topic of discussion during the oral arguments was the viability standard created by Planned Parenthood v. Casey. Under this precedent, the interest that states have in protecting the lives of unborn babies can only be enforced after the unborn child has reached an age of viability. The federal government recognizes this gestational age to be 24 weeks, although some babies have survived outside of their mothers' wombs after only 21 weeks gestation.

Mississppi Solicitor General Scott Stewart summarized the issue well when he gave his argument before the justices:

"Consider this case: The Mississippi law here prohibits abortions after 15 weeks. The law includes robust exceptions for a woman's life and health. It leaves months to obtain an abortion. Yet, the courts below struck the law down. It didn't matter that the law apply -- that the law applies when an unborn child is undeniably human, when risks to women surge, and when the common abortion procedure is brutal. The lower courts held that because the law prohibits abortions before viability, it is unconstitutional no matter what.

Roe and Casey's core holding, according to those courts, is that the people can protect an unborn girl's life when she just barely can survive outside the womb but not any earlier when she needs a little more help. That is the world under Roe and Casey.

That is not the world the Constitution promises. The Constitution places its trust in the people. On hard issue after hard issue, the people make this country work. Abortion is a hard issue. It demands the best from all of us, not a judgment by just a few of us. When an issue affects everyone and when the Constitution does not take sides on it, it belongs to the people."

The conservative majority, should they choose to overrule the precedents set by Roe and Casey, have several options of how to do so. They could

1. simply move the viability standard from one subjective age to another (such as 15 weeks),
2. return to an "undue burden" standard by which a set of rules would define when states have the right to protect the lives of unborn babies through legislation, or
3. rule that the Constitution does not take a stance on abortion and return the issue to the states. This would give states the power to limit abortion however they choose.

When Justice Sotomayor challenged Stewart to explain why the current viability line is not workable, he responded that the standard does "is not tethered to anything in the Constitution, in history, or tradition. It's a quintessentially legislative line. A legislature could think that viability makes sense as... a place to draw the line, but it's quite reasonable for a legislature to draw the line elsewhere."

Several Justices and arguments pointed out that setting an arbitrary age or returning to an undue burden standard could create problems for the court in the future.

Justice Kagan asked a question of Stewart that highlighted a problem that could be created if the court were to return to an undue burden standard,

"...if basically the viability line was discarded and undue burden became the standard overall, a standard that according to you is an unclear one, what that would leave the Court with going forward.

You know, I'm just sort of thinking about the great variety of different -- of regulations that states could pass, so whether one is 15 weeks and one is 12 weeks and one is 9 weeks or variation across a wide variety of other dimensions. What would that look like coming to the Court?"

Stewart's response agrees that an undue burden standard could be problematic, but emphasizes that is part of the reason why Mississippi is recommending that the Supreme Court overturn Roe and Casey wholesale. 

"...part of why we've counseled to overrule full scale is that that's the only way to get rid of a number of the problems that I think Your Honor's alluding to.

And that's that when you have the undue burden standard, it's -- it's a very hard standard to apply. It's not objective. The Court looks to the record in each case and what's going on. I mean, the Court in Casey itself said, under this record, this is not an undue burden. You -- you couldn't say necessarily for certain that a certain number of weeks one place would be an undue burden but would be okay another place. But, again, that is the world we have under Casey. So, if the Court upholds this law under the undue burden standard, it would be carrying forward with those features, which I -- and I hope I've answered your question, but I think that's one of the very strong reasons to just go all the way and overrule Roe and Casey, Your Honor."

Several statements by Chief Justice Roberts, however, implied an interest in simply moving the line at which abortion can be regulated from 24 weeks to 15.

“...if you think that the issue is one of choice, that women should have a choice to terminate their pregnancy, that supposes that there is a point at which they've had the fair choice, opportunity to [choose], and why would 15 weeks be an inappropriate line? Because viability, it seems to me, doesn't have anything to do with choice. But, if it really is an issue about choice, why is 15 weeks not enough time?”

“...I'd like to focus on the 15-week ban because that's not a dramatic departure from viability. It is the standard that the vast majority of other countries have. When you get to the viability standard, we share that standard with the People's Republic of China and North Korea.”

While moving the standard would provide a great benefit to the unborn, it would not make the issue go away. To truly protect the lives of the unborn, pro-life advocates would much prefer that the courts send this issue back to the states. If they do so, states can enforce legislation that values and protects their lives.

In our next Dobbs post, the IFRL will take a look at some of the medical statements made by pro-abortion justices and legal counsel.

Dobbs v. Jackson: Liberty and the 14th Amendment

During the Dobbs v. Jackson Women's Health Organization oral arguments on Dec 1, several major ideas that will influence the judges' decision became clear. The IFRL is releasing a series of posts detailing those concepts so that pro-life advocates can know what is informing the court's upcoming decision in a case that has the potential to change the future of abortion laws in the United States.

Liberty and the 14th Amendment

Justice Clarence Thomas's exchange with US Solicitor General Elizabeth Prelogar, who argued on the pro-abortion side of the issue, cut to the crux of the constitutionality argument.

“I understand we are talking about abortion here,” Thomas said. “But what is confusing is that we — if we were talking about the Second Amendment, I know exactly what we are talking about. If we’re talking about the Fourth Amendment, I know what we’re talking about because it’s written. It is there. What specifically is the right here that we are talking about?”

“The right is grounded in the liberty component of the 14th Amendment, Justice Thomas,” Prelogar responded. She argued that the right exists in an interpretation of the 14th Amendment's liberty component. The 14th amendment reads that "...the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law."

Because unborn children are often not considered "persons" under the law, the pro-abortion interpretation is that this clause protects a woman from being "compelled" by the state to carry an "unwanted pregnancy" to term. The unborn child in this case would not be given similar rights to liberty or due process due to their legal status.

Julie Rikelman, representing the Center for Reproductive Rights, confirmed this with her own arguments before the court. "...Casey and Roe were correct," she stated. "For a state to take control of a woman's body and demand that she go through pregnancy and childbirth with all the physical risks and life-altering consequences that brings is a fundamental deprivation of her liberty. Preserving a woman's right to make this decision until viability... protects her liberty while logically balancing the other interests at stake."

Thomas also asked Rikelman where the constitutional right to abortion is found, and she similarly referenced liberty and the 14th Amendment.

This reasoning, of course, does not take into account the right of an unborn child not to be killed. Justice Kavanaugh correctly pointed out in one of his questions that the rights of both a mother and her unborn child cannot be respected at the same time during an abortion. "...you can't accommodate both interests. You have to pick. That's the fundamental problem. And one interest has to prevail over the other at any given point in time, and that's why this is so challenging."

In our next post, the IFRL will highlight the court's discussion over the viability standard.

Dobbs v. Jackson: Stare Decisis

During the Dobbs v. Jackson Women's Health Organization oral arguments on Dec 1, several major ideas that will influence the judges' decision became clear. The IFRL will be releasing a series of posts detailing those concepts so that pro-life advocates can know what is informing the court's upcoming decision in a case that has the potential to change the future of abortion laws in the United States.

Stare Decisis

Pro-abortion Justices and the challengers to Mississippi's 15-week abortion ban argued their position from the point of view that abortion precedent should stand under the principle of stare decisis. This principle means “to stand by things already decided.” The actual constitutionality of abortion was not a major topic of discussion.

One statement by Justice Sonia Sotomayor is an example of this. "The right of the woman to choose, the right to control her own body, has been fairly set since Casey and never challenged. You want us to reject that line of viability and adopt something different," she said. "Thirty (justices) since Casey have reaffirmed the basic viability line. Four have said no, two of them members of this court. But 15 have said yes, of varying political backgrounds."

Justice Stephen Breyer also argued that it was not correct for the court to reexamine its precedent, saying, "To overrule under fire, in the absence of the most compelling reason, to reexamine a watershed decision, would subvert the court's legitimacy beyond any serious question."

Justice Samuel Alito, on the other hand, challenged the idea that abortion precedent can't be touched by the court. He questioned US Solicitor General Elizabeth Prelogar, who argued on the pro-abortion side of the issue, by using the example of Brown v. Board of Education. That decision overruled the Plessy v. Fergusson precedent of "separate but equal."

After Prelogar initially did not give a direct answer, Alito said,

"I still don’t have your answer clearly. Can a decision be overruled simply because it was erroneously wrong, even if nothing has changed between the time of that decision and the time when the Court is called upon to consider whether it should be overruled? Yes or no? Can you give me a yes or no answer on that?"

Prelogar did eventually concede that she believed it was correct for the court to overrule its precedent in that case, but she added many qualifiers to her answer.

Justice Kavanaugh also challenged Prelogar, and argued that the Constitution does not make any statements on abortion whatsoever.

"The Constitution is neither pro-life nor pro-choice on abortion. If we think that the prior precedents are seriously wrong, why don't we return to neutrality?" Kavanaugh asked. "Why should this court be the arbiter rather than Congress?"

"There'll be different answers in Mississippi in New York, different answers and Alabama than California because they're two different interests at stake and the people in those states might value those interests somewhat differently."

Prelogar responded that abortion is a "fundamental right" and that without it women would be unable to "participate fully and equally in society." She described abortion as a "central component of women's liberty." With this as her basis, she argued that the states did not have the right to protect the lives of the unborn through abortion restrictions.

Liberty does not give one human being the right to end the life another completely innocent human being. Prelogar's statements stretch the concept of liberty past their reasonable limits, and suggest that women are incapable of participating equally in society if they don't end the lives of their unborn children through abortion. Her description of Supreme Court precedent clearly shows why pro-life advocates so strongly oppose it. In our next post, we will examine the "liberty" to which Prelogar is referring more closely.

Supreme Court Hears Oral Arguments in Dobbs. v. Jackson Women's Health

On Wednesday morning, the Supreme Court heard oral arguments in the highly anticipated case of Dobbs v. Jackson Women's Health Organization. In this case, the court will decide whether states have a compelling interest to protect the lives of unborn babies prior to viability. The court will begin deliberating on a decision that could change the future of abortion law in America.

The case was initiated by a 2018 Mississippi law banning abortions after 15 weeks gestation. That law has been blocked by the courts, but it is being used to challenge the Supreme Court's abortion precedent.

“The Supreme Court oral arguments today were very encouraging. It is apparent from the questions that a majority of the Court is seriously considering at least rejecting the viability line that currently prohibits prohibitions on abortion prior to viability,” said James Bopp, Jr., National Right to Life Committee’s (NRLC) General Counsel, and author of NRLC’s amicus brief in the case.

“But the key question seems to be how far the Court is willing to go, either a decision that just rejects the viability line, permitting states to argue that prohibitions on abortion prior to viability are justified by sufficiently compelling state interests or if they will issue a broader decision which explicitly either totally or partially overrules Roe and/or Casey. There appears to be several Justices whose questions seemed to favor one path or the other, who would constitute a majority,” said Bopp.

“It is important to remember that either ruling would be a tremendous victory for the pro-life movement, vastly expanding our ability to protect innocent unborn life,” Bopp concluded.

Justices Sotomayor, Kagan, and Breyer suggested that the current standard, viability, has served as a workable and fair standard for when states can begin to limit abortions. The other justices expressed that this standard does not make sense. Even Chief Justice Roberts, according to New York Times writer Adam Liptak, “repeatedly questioned whether the viability line was crucial, saying that Justice Harry A. Blackmun, the author of the majority opinion in Roe, had called the line arbitrary in his private papers.”

National Right to Life President Carol Tobias spoke at a press conference on the steps of the Supreme Court, saying , “Viability is an ever-changing standard and, therefore, unworkable as the timeline or framework for abortion. For many years, babies were thought to be viable at 28 weeks. Now, babies are generally considered to be viable at 24 weeks, but babies have survived at 21 weeks! Viability is not a characteristic of the baby but of how advanced our technology has become.”

Tobias continued, “Mississippi seeks to protect from abortion unborn babies after 15 weeks. By that age, preborn children are fully formed. They have heartbeats, fingers and toes, and functioning organs. By eight weeks gestation, brain waves can be recorded. Life has surely begun, and the state has the right, indeed—the duty—to protect it.”

National Right to Life's Dave Andrusko wrote about five major takeaways from Wednesday's oral arguments. Click here to read those.

Study Shows Increased Risk of ER Visit After Chemical Abortion

A new study shows that increased access to abortion pills could be the cause of increased abortion-related emergency room visits.

The study, released by the Charlotte Lozier Institute (CLI) and published in the peer-reviewed journal Health Services Research and Managerial Epidemiology, used Medicaid claims data to analyze the 423,000 confirmed abortions and 121,283 confirmed subsequent visits to the emergency room. The study included emergencies that occurred within 30 days of abortion by women over 13 years old who had at least one identifiable pregnancy between 1999 and 2015.

The data shows that abortion-related emergency room visits increased over 5000% between 2002 and 2015. In that same period, chemical abortions (abortions completed via the abortion pill) increased from 4.4% to 34.1% of all abortions.

Key findings from the CLI study include:

• Women who had chemical abortions were 53% more likely to visit the ER for an abortion-related reason. They were 22% more likely to visit the ER for any reason.
• For every 100 abortions, the study found 35 abortion-related ER visits. The rate of ER visits for surgical abortions increased by 315% from 2002-2015, while the rate for chemical abortions increased by 507%.
• Women who have a chemical abortion, and then have a second abortion of any time within 12 months were more than twice as likely to end up in the ER.
• Over 60% of abortion-related ER visits after chemical abortions in 2015 were miscoded by hospital staff as miscarriages. Whether intentional or mistaken, this could put those patients at increase risk or hide the dangers of chemical abortions.

The FDA will decide on Dec. 16 whether to end REMS safeguards that regulate the distribution of abortion pills. If the Biden FDA chooses to allow widespread mail distribution of this DYI abortion method, that could create a public health risk for women throughout the US.

Click here to read more.

Oral Arguments in Dobbs v. Jackson Women's Health Organization to be Heard this Week

The Supreme Court is set to hear oral arguments in Dobbs v. Jackson Women's Health Organization on Wednesday, Dec. 1. The Court will consider whether states have a compelling interest in protecting the right to life prior to viability.

This case stems from a 2018 Mississippi law that protects babies from abortion after they reach a gestational age of 15 weeks. Lower courts have blocked this law from being enforced, but Mississippi Attorney General Lynn Fitch will have the opportunity to argue on its behalf. Fitch plans to argue against the current Supreme Court framework surrounding legal abortions. 

In a statement released after the Supreme Court set Dec. 1 as the date for oral arguments, Fitch wrote,

“We are looking forward to the opportunity to present our case directly to the Justices this December. The Court has acknowledged that states have the authority to promote legitimate interests, including protecting women’s health and defending life; but its abortion precedents have denied the people and their elected leaders the ability to fully do so.  In fact, the Roe decision shackles states to a view of facts that is decades old, such that while science, medicine, technology, and culture have all rapidly progressed since 1973, duly enacted laws on abortion are unable to keep up. With Dobbs, the Supreme Court can return decision-making about abortion policy to the elected leaders and allow the people to empower women and promote life.”

If you would like to watch a live stream of oral arguments on Wednesday, you can do so at the Mississippi Attorney General's website here.

CDC Report Shows Abortion Rate Increase

A report released last week by the CDC suggests that abortion is on the rise in the United States.

The CDC released a report on Nov. 24, 2021 showing that the number of abortions increased by 2% from 2018 to 2019. Furthermore, the report says that "Approximately 18% of all pregnancies in the United States end in induced abortion."

The report lists a number of factors that contribute to the abortion rate. Among them are state regulations, parental involvement laws, and legal restrictions on abortion businesses.

Frustratingly, the data available to the CDC lacks information from three states. Among those states is California, which is a pro-abortion state and is also the most populated state in the country. The other states that choose not to report abortion statistics to the CDC are Maryland and New Hampshire. Because it is not mandated by the federal government to provide abortion statistics, the information provided to the CDC by the 47 reporting states could easily undershoot the true abortion rate.

Click here to read more.

Tennessee to Pay Legal Fees for Abortion Businesses Temporarily Closed During 2020

Tennessee has agreed to a settlement with abortion businesses in the state to pay their legal costs for suing over Gov. Bill Lee's executive order that banned non-essential medical procedures for a period of time in 2020. The order was designed to preserve personal protective equipment for hospitals during the early days of the COVID-19 pandemic.

Tennessee will pay $249,000 to abortion businesses to cover their legal costs. The prosecuting parties to be awarded taxpayer dollars include "Bristol Regional Women’s Center, CHOICES, the Memphis Center for Reproductive Health, the Knoxville Center for Reproductive Health, Planned Parenthood of Tennessee and North Mississippi, and Dr. Kimberly Looney — an OB/GYN affiliated with Planned Parenthood" according to Live Action.

The abortionists argued that ending the lives of innocent unborn humans is essential, and the legal system, unfortunately, agreed with them. A Nashville judge blocked the order from applying to abortion, and the 6th Circuit Court of Appeals rejected Tennessee's request to hear the case.

Click here to read more.