Americans may be saying goodbye to President Trump later this month, but his presence will still be larger-than-life in another branch of government: the courts. Almost every day, there's another headline reminding both sides what an amazing judicial legacy the 45th president is leaving behind. And with Congress very nearly in Democratic hands, that's no small prize.
The Senate was supposed to be the backstop to the liberals' radical plans. With that in doubt, conservatives are thanking God for the last resort they still have: the guardians of justice -- the courts. That hasn't always been the case, but thanks to the president and Senate Republicans, there are more originalists on the court than ever before. And if a return to the Constitution is what it takes to counter the liberal onslaught that's coming, then at least there are judges in place who uphold it.
The latest example of that was just this week in the 8th Circuit, where judges were forced to strike down two pro-life laws in Arkansas. How is that good news, you're wondering? Well, one of the issues at stake was the viability of an unborn child. State leaders had decided to outlaw abortion after 18 weeks, when they believed the baby could survive outside the womb with medical help. The usual standard for viability, set by the U.S. Supreme Court in Planned Parenthood v. Casey, is 24 weeks. But with the evolutions in technology and health care, pro-lifers have always challenged whether that threshold is too high.
Turns out, so do the circuit's judges. In a surprising -- and encouraging -- twist to what should have been a bad news story, the Republican-appointed judges urge the Supreme Court to reconsider the viability standard. The only reason they overturned the Arkansas's laws, they explain, is because they were bound by the high court's precedent. But it's a precedent, two judges (and others who concur) argued plainly, that needs to go.
"Today's opinion," Judge Bobby Shepherd writes, "is another stark reminder that the viability standard fails to adequately consider the substantial interest of the state in protecting the lives of unborn children as well as the state's 'compelling interest in preventing abortion from becoming a tool of modern-day eugenics.' Box [v. Planned Parenthood (2019)] (Thomas, J., concurring). The viability standard does not and cannot contemplate abortions based on an unwanted immutable characteristic of the unborn child."
The other Arkansas law in question, the one Shepherd alluded to in his opinion, would have outlawed abortions based on a Down Syndrome diagnosis. Judge Ralph Erickson had a difficult time swallowing either decision the court was forced to make, explaining:
"One of the great curses of the 20th century was rise of the eugenics movement. It gave a patina of acceptability to such horrors as genocide, forced sterilization, the development of a master race, and the death of millions of innocents.
The new eugenics movement is more subtle, but a state could nonetheless conclude that it poses a great and grave risk to its citizens. A core value of eugenics is the notion that diversity in the human population should be reduced to maximize and eventually realize the 'ideal' of a more 'perfect person.' Inherent in this concept is the goal of controlling genetic diversity of a population in order to create a super race: one that is deemed to be healthier, smarter, stronger, and more beautiful. The creation of such a cadre of people would undoubtedly lead to greater discrimination against people who are deemed to be 'inferior,' resulting in a broad attack on diversity of the human population."
While the outcome wasn't what anyone in Arkansas -- or the pro-life movement -- wanted, these judges decided to use their power to do something equally significant. It urged the Supreme Court to look again at this issue again and reconsider its outdated and "overly simplistic" view of viability. If the justices listen, then the ultimate victory would be much more monumental for life: in all forms and all places.
