Russell Shaw Pro-life and the U.S. Supreme Court

Mar 10, 2018

Defeat on a Senate procedural vote last January of legislation to ban abortion after 20 weeks of pregnancy was a great disappointment – genuinely "appalling," as the U.S. bishops' pro-life chairman, Cardinal Dolan of New York, called it. But other developments with major potential for the pro-life cause are coming in the weeks and months that lie just ahead.

The Supreme Court has set March 20 as the date for oral arguments in a case testing whether a state – in this case, California – can require religiously-sponsored pregnancy counseling centers to remind women of the availability of abortion elsewhere.

The case is a classic challenge to aggressive government overreach seeking to impose secularist values on religious groups whose rights and interests are imperiled in this way.

A friend of the court brief filed by the bishops' conference and other groups says the central issue at stake in this dispute is "the First Amendment right of all religious organizations to choose for themselves not only what to say but what not to say." The bishops are joined in the brief by the California Catholic Conference, the Catholic Health Association, the Lutheran Church-Missouri Synod, the Christian Legal Society, and the Orthodox Jewish organization Agudath Israel.

The case (National Institute of Family and Life Advocates v. Becerra) is on appeal to the Supreme Court from a 9th Circuit U.S. Court of Appeals decision upholding a California law compelling the pro-life pregnancy centers to post notices advertising pregnant women of the availability of free or low-cost services including abortion and giving the number of the local social services office for further information. The Supreme Court is expected to announce its decision before its term ends in late June.

Already awaiting decision by the Supreme Court is another religious liberty case, similar in some ways to this one but involving same-sex marriage rather than abortion. In that case, a Colorado baker was found guilty of violating state anti-discrimination law for declining to bake a wedding cake for a same-sex couple in violation of his religious convictions. The Supreme Court heard oral arguments in the case (Masterpiece Cakeshop v. Colorado Civil Rights Commission) last December 5 and its ruling could come at any time.

As these cases work their way through the judicial process, observers are conscious of an even larger question about the Supreme Court, with a strong bearing on issues like religious liberty and abortion. It's whether President Donald Trump will get another opportunity to name someone to the court – and will happen if he does.

Religious liberty advocates and pro-life groups were delighted by the confirmation last year of Justice Neil Gorsuch, Trump's first and so far only Supreme Court pick. For Trump to have a second shot at the court, one of present members must step down. And although in the nature of things there's no certainty that will happen or who it will be, the most likely candidates based on age are Justice Ruth Bader Ginsburg, who turns 85 in March, and Justice Anthony M. Kennedy, now 81. 

Ginsburg is the most prominent member of the court's present four-member liberal bloc, while Kennedy, a swing vote, generally votes pro-choice on abortion and supports same-sex marriage. If Trump should nominate a conservative to replace either of these two, a long, bitter confirmation fight will follow in the Senate, with the outcome uncertain. This argues for Ginsburg and Kennedy to hang on at least through November and thereafter act according to the lay of the post-election political landscape.