Have Pro-Lifers Lost the Supreme Court Fight?

In 2014, Louisiana enacted a law requiring doctors performing abortions to have admitting privileges at nearby hospitals. Earlier this week, the Supreme Court struck down the law. Legislators said the requirement would improve the level of care that clinics provide for women. Abortion regulations in Louisiana and other conservative states have resulted in clinic closures and corresponded with falling abortion rates nationwide.

Beyond the Supreme Court’s power, the federal government plays a key role in terms of shaping public opinion around abortion, says Alexandra DeSanctis, a staff writer for National Review and the host of the For Life podcast.

“But I think in terms of what comes before courts, and what actually goes into effect, what actually matters for the everyday American in terms of how they think about abortion, is policy at the state level,” said DeSanctis. “And I think that even among pro-lifers, there are plenty of people who think you couldn't even really pass a ban on abortion through the U.S. Congress. ...So I do think if this is going to be a successful fight for pro-lifers, we have to think first and foremost of the micro-level, local and state policy first.”

DeSanctis joined digital media producer Morgan Lee and editorial director Ted Olsen to discuss what was surprising and unsurprising about the SCOTUS decision, what makes John Roberts tick, and if trying to get cases to the highest court in the land should be the goal for pro-lifers.

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The transcript is edited by Bunmi Ishola

Highlights on Quick to Listen: Episode #219

There are 133 pages of opinions on this case, and only 16 of them were by Chief Justice John Roberts. Can you help our listeners understand the basis of his decision?

Alexandra DeSanctis: So, a little bit of context first. The law at stake, in this case, was in Louisiana, it’s an admitting privileges law very similar, though not identical, to the Texas law that was struck down by the Supreme Court in 2016.

And at that time, John Roberts wrote a very thorough, excellent dissent disagreeing with the way that the majority had reinterpreted Planned Parenthood v. Casey to strike down the Texas admitting privileges law. But in this decision, while he sided with the judgment of the majority, saying that the Louisiana law must be struck down, he explicitly said, I still believe that whole woman's health was wrongly decided, but the fact is that it was decided that way and because it's precedent, we have to uphold it, as opposed to a very obvious reason why it needs to be overturned.

And to me, my thought is, perhaps the obvious reason is it's wrong and you yourself think it's wrong. So you would think that would be more grounds to consider reversing it very shortly thereafter. But he's just kind of resting there on stare decisis (Latin for “let the decision stand”).

It seems the consensus that Judge Roberts is more prone to invoke stare decisis social issues, and more likely to express an opinion to overturn economic issues, like he’s more of economic conservative that a social conservative. What’s your take on that?

Alexandra DeSanctis: I'm not sure exactly what it is about Robert's philosophy in terms of which issues he has a particular opinion on, but I think the best way to read him at this point—given that he's overturned precedent in the past on other issues, but he's very hesitant to do so when it comes to abortion clearly—is that the reason is probably less about his own personal views about one issue versus another.

He’s an institutionalist and he is willing to do what he thinks it takes, and decide in a way, that he thinks he needs to in order to uphold the reputation of the court. And for some reason, I think he just has it in his mind that if the court were to start walking back its abortion jurisprudence, this would make the court appear political. And to me, I think it appears much more political when you have a Chief Justice saying, “The court was wrong to decide this, but we must stand by it, so you’ll continue to respect us.”

That makes very little sense to me, but from people I trust and from my reading of what he's done in the past, I think this particular area of law just makes him very fearful about disturbing public opinion or the status quo.

Let’s get into some of the details of this particular case. One of them was about the question of doctors needing to have admitting privileges at a local hospital. What type of medical professionals need admitting privileges? And is it unusual to require admitting privileges for a doctor who performs abortions?

Alexandra DeSanctis: It certainly wasn’t unusual in Louisiana, which was the question at stake here. I'm not familiar enough with the laws in other states to say how common this is. But I do know for a fact that in the state arguments in favor of this policy, they were pointing out that Louisiana already required that every other ambulatory surgical center in the state and any doctor who practices medicine must have admitting privileges at a local hospital.

The idea being, if you're having people in for outpatient surgery, there's always a higher risk with these types of procedures. You want to ensure that people can get into a hospital more easily for follow-up care if they need it. So if you're performing dental surgery, you must have admitting privileges at a hospital within 30 miles.

And so this policy was essentially closing a loophole that existed in Louisiana law that was exempting abortionists from that mandate and saying, if you're performing abortion surgical abortions, you don't actually have to have these admitting privileges. It was really just trying to even out the law and make sure that all outpatient surgeries were covered by this sort of policy.

People supporting this law in Louisiana argued that this is significantly different than the earlier case that the Supreme court had decided. Can you talk about what they said was different?

Alexandra DeSanctis: So my understanding of the argument the state was making in favor of this policy and what the fifth circuit in Louisiana did when they upheld the law last year was that they found was that the law would not close any clinics.

So in Texas, part of the rationale for striking down the admitting privileges law had been that if this policy went into effect more than a dozen abortion clinics would have to close because the doctors wouldn't have been able to get admitting privileges. And Louisiana pointed out that would not be the case there. Essentially, it wouldn't affect women's ability to obtain an abortion because the doctor should have no trouble getting admitting privileges at a local hospital. And so they tried to distinguish along those grounds.

I think it's worth touching on a secondary issue in the case, which was whether or not abortionists have the standing to challenge a policy like this. And that's something in Justice Clarence Thomas's dissent. Chief justice Roberts barely even addressed the question of standing, but the state of Louisiana made a pretty compelling case that if the policy was a problem for women, it ought to be women themselves challenging the regulation and saying it was somehow impeding their access to abortion. But in fact, it was abortion providers, challenging the regulation on behalf of women. And as the state pointed out, I think pretty compellingly, oftentimes abortionists’ interests are directly at odds with a woman seeking an abortion.

You mentioned the Thomas dissent, which is notable, not just because he really hammered on standing, but also for this line where he says, “the court created a right to abortion out of whole cloth without a shred of support from the constitution text.” He went on to say the precedents “are grievously wrong and shared should be overruled.” Some pro-lifers are very frustrated that Thomas was all by himself on that and that no other conservative justice signed onto that dissent. How do you feel about that?

Alexandra DeSanctis: I loved the dissent. I really appreciated that because I felt like someone in the room is saying what needs to be said here. And of course, I would have been overjoyed to see even just the four dissenting justices sign onto that dissent.

I’ve seen arguments that the fact that no one else signed onto that dissent means they none of them agree with it or even that the other conservative or originalist justices therefore must accept the framework of Planned Parenthood v. Casey. But I don't think that's the case.

I think you're dealing with different temperaments, different judicial philosophies, and someone like Justice Alito, I don't think you could really make the case that he's a fan of the logic of Planned Parenthood v. Casey, but he also isn't a Justice Thomas who comes out guns blazing every time he has a chance to knock down the foundations of poor jurisprudence.

So while I would have loved to see more support for what Thomas wrote, I wouldn't necessarily read the tea leaves in a terribly melodramatic way.

What’s interesting from looking at the responses from the more liberal side is there’s some nervous hand ringing. They think Justice Roberts ruling as strategic and that he’s really setting up for undercutting of Roe v. Wade. There’s are two camps. One thinks he’s signaling pro-lifers to go big, pointing to a line where Robert says, “we weren't asked whether we think that Casey and Roe were rightly decided, so we are not going to be addressing that in our decision.” The other view is that Robert is signaling to profilers to bring cases where he can chip at this through a whole lot of smaller restrictions on abortion. Does either of those make sense to you? Or which do you think might be a better read? Are there prospects for overturning Roe or Casey, or is the future small state regulations?

Alexandra DeSanctis: I don't really buy into either of those theories as much as I would like to. I'd love to make myself believe that Roberts has some kind of complex vision for actually getting some of these egregious precedents overturned.

But if one of the two were more plausible, I would say, I think the former is because I think if you're thinking the way he is, from an institutionalist point of view, it makes sense for the court to really narrowly focus on precisely what it's being asked to do. Here, it wasn't being asked to talk about Casey or to overturn Casey.

But he was incorrect that the state hadn't asked him to overturn whole woman's health. And so to me, the fact that he was presented an opportunity a mere four years later to uphold a law that he believed ought to have been upheld four years ago, that he says he still believes ought to have been upheld four years ago, but wouldn't do it, tells me there's not really some kind of grand strategy at work here. Because why would he uphold a four-year-old precedent, but be willing to overturn a multiple-decades-old precedent?

So, do pro-lifers go big or do they work in an incremental fashion? I have always been of the mind, at least as long as I've been following all of this as a non-lawyer, that you kind of have to do a little bit of both. You've got to try chipping away at this legal regime bit by bit, and just get as many things before the court as you can and hope for the best because very clearly you can't count on anything.

Let’s focus on how the pro-life movement has worked to advance their cause through state legislatures. What types of laws have been successful, and which are the ones that have been struck down more often?

Alexandra DeSanctis: Last year we saw a number of cases where states passed heartbeat bills. And these are bills that prohibit abortion after a fetal heartbeat can be detected, which is usually about six weeks into pregnancy. So this is a pretty bold pro-life policy.

And then we watched as, one by one, courts, at least at the very least enjoined these policies while the challenges were going through the courts. And so none of them actually took effect. And I don't think we can really expect any of them to take effect.

And I think that's part of the problem with policies that actually “go big.” In a sense, you're just almost always going to see them struck down because, under the framework of Casey, you can't get away with very much as a pro-life legislature. You just aren't going to be able to put those policies into effect. But the good thing about trying is you're going to get them before the court and maybe eventually one of them will be upheld, you just kind of never know.

We've seen states permitted to have regulations in effect like a 20-week ban or many states will regulate abortion later in pregnancy. But the question is, what types of exceptions have we put in place?

That's kind of a little known aspect of the Roe v. Wade and Doe v. Bolton decisions, that even if a state is permitted to regulate abortion, they always have to have a maternal health exception, which means that if a woman's mental health, familial health, financial health, or something sort of vague category like this is deemed to be at risk, she can get an abortion up until birth. And so even though that's not really written into policy, there's always that kind of backdoor that allows abortion on demand.

Would you say that in the pro-life advocacy movement in general there has been broad support for trying to chip away at abortion rights? Or is there a frustration or even tension at times over this strategy?

Alexandra DeSanctis: I think there's certainly been tension. I referenced those heartbeat bills, and that is a really good example of the difference in perspective, even among pro-lifers, on what the best legal strategy is. Because obviously all pro-lifers would support having such a policy in place, but there's sort of this incrementalist view that you have to start with a broader restriction.

The thought is that if the court is going to strike down an admitting privileges law, how on earth are you going to get away with putting a heartbeat bill in place? So we really need to start with the bigger picture in mind and focus on broader restrictions like trying to get the court to slowly overturn things like whole women's health.

But the other argument is gaining more steam, which is the court's not even willing to overturn whole woman's health. Why on earth would we keep playing small ball like this in a sense and fighting over things like putting restrictions on abortion clinics? Let's just actually argue against Roe v. Wade. Go right for the heart of what's wrong with our abortion jurisprudence and force courts to answer that question.

It seems like working through the state legislature has been successful in many ways. Is there some sort of asterisk that basically says it has to be a red state or is this something that is finding success in bluer states as well?

Alexandra DeSanctis: I think lesser covered aspects of the admitting privileges law at stake in Louisiana is that it was passed on a bipartisan basis. It was introduced by a Democratic, female legislature and signed into law by a Democratic governor. Same thing when Louisiana passed a heartbeat bill last summer. So it's certainly not exclusive to red States. There are places around the country where you have pro-life Democrats at the state level.

But I think you are certainly seeing a big picture shift in the Democratic party moving very far away from any kind of abortion restrictions whatsoever. And I think as a result these sorts of pro-life policies tend to be more concentrated in red states for the most part, though not exclusively.

Even with the Supreme Court rulings going against pro-lifers, the U.S. abortion rate has declined more than 50% since 1980 and continues to decline fairly dramatically. What is your read on that is? Is that state-based regulation? Is that winning hearts and minds? Is it a little bit of everything?

Alexandra DeSanctis: I do think there is certainly some changing of hearts and minds. The public opinion on abortion tends to stay relatively stable, but if you look at the macro view over the course of decades, the number of Americans who support some kind of abortion restrictions is certainly growing, especially among younger Americans. You'll see openness to things like a 20-week ban or a ban on abortion of fetuses diagnosed with down syndrome. So around the edges, I think you are seeing some change in public opinion.

Whenever people talk about the abortion rate, I do think that's a really hopeful sign, and the pro-abortion side often likes to attribute this to just an increased use of contraception, but in fact, there's also a higher rate of women who choose to carry an unintended pregnancy to term. And so to me, that definitely shows there's some changing of hearts and minds in the culture on this issue.

I think it's certainly worth celebrating, but at the same time, we're now below a million abortions every year in the country, and so it is still kind of a grim thing to celebrate, but it is a positive trend.

In our country, there seems to be this just huge outpouring of energy and attention that is just given to federal politics. But how much do federal politics matter when it comes to fighting abortion rights in your opinion?

Alexandra DeSanctis: I think it matters quite a bit in terms of public opinion and shaping the conversation that we have about abortion. If you remember back in February, there was a fight in the Senate over the Born-Alive Abortion Survivors Protection Act, which was a pro-life bill brought by Senator Ben Sasse. And I think those types of conversations happen

But I think in terms of what comes before courts, and what actually goes into effect, what actually matters for the everyday American in terms of how they think about abortion, is policy at the state level. And I think that even among pro-lifers, there are plenty of people who think you couldn't even really pass a ban on abortion through the U.S. Congress. There might not be the authority for that.

So I do think if this is going to be a successful fight for pro-lifers, we have to think first and foremost of the micro-level, local and state policy first.

Earlier this year, you wrote a piece about some of the lesser-known groups, communities, and activists and the pro-life movement. Why did you decide to do this story and how did you find your subjects? And can you also share a little bit about who you profiled?

Alexandra DeSanctis: This is one of my favorite pieces I've ever written actually, and I ended up interviewing about 20 different pro-life leaders and activists.

I have been covering abortion now for about four years for The National Review, and in the course of doing that, not only do I do my own reporting and my own commentary, but I read a lot of commentaries and a lot of reporting on this topic. And I just found it to be so deficient because you just always see this line that the only people who oppose abortion are white Christian males who are trying to control women's bodies. That only misogynists oppose abortion, only Christians oppose abortion. That there are people who are trying to impose their religious values on you or a white supremacist. Just these absolutely ridiculous arguments.

And as someone increasingly familiar with the pro-life movement, I just know for a fact that this isn't the case, but the voices who've disproved this argument are either ignored or actively silenced and attacked by abortion supporters. And so I wanted to write a piece interviewing and speaking with some of the people who disprove this totally false narrative. From African American pro-lifers, who have a really vast pro-life network that I learned a great deal about, to feminist pro-lifers and non-religious, or secular atheist pro-lifers, who oppose abortion for scientific reasons because they know it takes a human life.

And so it was a very informative experience trying to build up contacts in these different groups and getting the perspective from these people who really do disprove the false narrative.

Even just to take one example, I had no idea the extent to which Black Baptist activists and leaders in the African American community are working so hard on this issue. They have just an immense network of people doing really grassroots work. It's not political work. It has nothing to do with who you vote for really. It's just going within their networks, talking to people in the African American community about how bad abortion is for them and how these women are not choosing abortion because they see it as freedom or a way out of trouble. They see it as something difficult, something they don't want to have to choose. They don't feel like they have other options. And so even just learning about that type of work was really eye-opening for me. And I hope that piece has helped people to realize just how false this pro-choice narrative is.

As someone who is extremely familiar with this movement and with what's happening both at the grassroots level and also at the political level, what are some of the stories that you would recommend we watch for in the next couple of years?

Alexandra DeSanctis: Well, I think there’s probably going to be a circuit court split on the question of these discrimination abortion bans, which is certainly worth paying attention to because the question of down syndrome abortion, or sex-elective abortion, or even race-selective abortion is a really touchy topic.

And it's something that's very difficult for people who support abortion to grapple with. Because on the one hand, there's this kind of argument that some people would say for something like down syndrome abortion, it's compassionate to end these lives because it's going to be a life of suffering. That's a really tricky argument to make. It's very a touchy topic.

But I think having those conversations in the public square really helps to expose how terrible abortion is because of course, it's not compassionate to kill someone who's going to face a particular type of suffering. It sort of opens people's eyes to the fact that all abortion is some kind of discriminatory killing, regardless of the reason it's chosen. And so I think those sorts of debates, should they come before courts, would be a good point for the pro-life movement to sort of open people's eyes a little bit.

And then I guess I would keep my eyes peeled for debates in the conservative legal world about how we revisit perhaps what types of justices we support, and what kinds of questions we ask potential nominees to answer having to do with Roe and Casey.

There has been this kind of thread running through some of the pro-life world to not make this a religious issue but to tackle it as a human rights issue. Do you think that there should be a shift in the way we talk about religious commitments and pro-life efforts?

Alexandra DeSanctis: I think that the religious right has rightly found a home for itself in the Republican party and in the idea that originalist, conservative justices are going to bring about the policy aims that we support by and large. I think Christian ideals naturally lineup with the natural law and natural rights tradition of The Constitution and the Declaration of Independence. And so I think that’s, for the most part, been a pretty successful alliance.

But I do think that that means we're in a party with people who don't really have the same priorities as us. And that's going to turn out with us getting disappointed. And I don't know that that means there's a better way of going about it or a better alliance available to us, I think that they're going to be disappointments along the way because we don't live in a country where Christianity is embraced by a large enough number of the people to have that be our laws and our tradition.

And so I do think there are ways to try and demand more from the partnerships we've made and not always be sort of the “redheaded stepchild.” We seem to always be the ones having to compromise rather than the ones getting our priorities listened to. But I don't know if that means we should try and cast off the alliance entirely and look for help somewhere else.