Bryan Fischer
How Louisiana abortion law should be decided
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By Bryan Fischer
March 6, 2020

Oral arguments were heard this week before the Supreme Court on the legal challenge to a Louisiana law that requires an abortionist to have admitting privileges at a hospital within 30 miles of his clinic. This is so a woman who experiences a medical emergency during an abortion can get quality emergency care. Anybody who claims to care about health care for women should celebrate this law.

However, regressives are virulently opposed to this bill and have chased it all the way to the Supreme Court. From a practical standpoint, it's difficult for abortionists to even get admitting privileges to area hospitals. This is largely due to the fact that abortion providers are considered blood-sucking, bottom-feeding scavengers by virtually everyone in the medical community.

The Hippocratic Oath calls for doctors to "first, do no harm." But abortionists do harm to their patients as a first order of business, and this moral inversion of medical ethics causes abortionists to be rightly despised in the medical community. Abortionists are out to destroy human life, while everyone else in medicine is out to save human life.

Because medical institutions with high standards of ethics consider the practice of killing unborn babies to be an abomination, if this law is upheld it will result in the shuttering of two of the three remaining abortion clinics in Louisiana, since their abortionists can't get admitting privileges to any decent hospital in the state.

However, if we were using the Founders' Constitution, the one crafted by our Founding Fathers and not the one mangled by the activist judges, this case would not be in front of the Supreme Court. In fact, it never would have made it out of Louisiana and into the federal judicial system at all. If we were following the Founders' Constitution, these clinics would have been shut down six years ago when the law went into effect.

The bill is called Louisiana's Unsafe Abortion Protection Act (emphasis mine). It's not a federal law, it's a law passed by the legislature of Louisiana and written to be applied only within the territorial boundaries of Louisiana. There is no reason at all this case should be decided in Washington, D.C. Louisiana has a court system of its own, perfectly capable of handling cases that involve Louisiana law.

The only reason Louisiana got into the federal system is because Roe v. Wade did. But the "Wade" of Roe v. Wade was the Dallas County District Attorney, and the issue in that case was a Texas law that was perfectly suited to decide the case. In fact, Roe (real name Norma Jean McCorvey) was denied her abortion under Texas law, gave birth to the baby she was carrying, and put it up for adoption. The case should have been dismissed because it was moot at that point.

Article III, which tells the federal judiciary which cases "We the people" even allow it to take, indicates that if a controversy is between two citizens of the same state, like Roe v. Wade, the controversy is not a matter for the Supreme Court to decide. Roe never should have made it out of Texas, let alone gotten all the way to the other side of the country.

Roe's attorneys got it into the federal judiciary under the Incorporation Doctrine, a doctrine manufactured in 1947 out of the ether that fancifully and without any legal justification whatsoever applies the Bill of Rights against – yes, that's the wording – against the states. As if the states did not have their own bills of rights and their own court systems to settle disputes over their own laws.

Supposedly there is some "right to privacy" in the 14th Amendment that had to be applied against the state of Texas, even though you will look in vain for the word "privacy" in the 14th Amendment, or anywhere else in the Constitution for that matter. Even if it was in there somewhere, it still could not supersede the explicit "right to life" articulated in the Declaration of Independence (the first of our organic laws), and reinforced in the 5th and 14th Amendments.

So what this "originalist" court should do, if it is going to just call balls and strikes, is dump the Incorporation Doctrine and send this case back to Louisiana with a declaration that the Constitution gives the Supreme Court no jurisdiction whatsoever over state laws, whose controversies are to be settled in state supreme courts. If that's not their purpose – to have final judicial authority over disputes that involve state law and the state constitution – why do states even have supreme courts?

The author may be contacted at bfischer@afa.net

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© Bryan Fischer

 

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