July 12, 2018
People will die! Birth control will be illegal! It's the end of the world! As far as liberals are concerned, nothing's a stretch under a Supreme Court that knows its constitutional limits. For a movement entirely dependent on activist judges, the sky is falling. And President Trump's pick to replace Justice Anthony Kennedy is a big reason why.
Of course, you can't blame liberals for panicking. Judge Brett Kavanaugh, President Trump's latest pick for the Supreme Court, has made it quite clear that if he's confirmed, he doesn't plan on playing along with the Left's game of "winning through the courts." Where does that leave a movement that's had to sue its way to abortion, same-sex marriage, and religious discrimination? In deep trouble.
"The world liberals have been 'living in' is one where all injustice can be cured through government intervention," Tom Gilson points out in the Stream. "...It's a world that foolishly supposes [important] matters are for judges to decide, not legislatures. It's a place where somehow this represents the rule of law rather than the rule of men -- even though it took but a simple majority of nine unelected persons to make these decisions into law."
The idea that the three branches of government might finally rediscover their original purpose is terrifying to a party that can't seem to win on its issues democratically. "How dare he be allowed to do this?" an emotional Joy Behar shrieked about President Trump on "The View." In other words, how dare he be allowed to take away the one crutch Democrats have for forcing unpopular things like gender-free bathrooms, transgender military policy, contraceptive mandates, and taxpayer-funded abortion on unwilling voters?
So scandalized are liberals over this nomination that Behar actually asked why Senate Majority Leader Mitch McConnell (R-Ky.) isn't "in jail" for refusing to rubber-stamp President Obama's Supreme Court pick in an election year. Others, like New York Governor Andrew Cuomo (D), are overreacting with special executive orders designed to "protect" states from the culture of life they fear Brett Kavanaugh might restore. New York, Cuomo wants the country to know, will always welcome the killing of innocent children. When it comes to abortion, he said, "no insurance company can deny it, no bureaucracy can deny it, and no federal agency can deny it." "Mark my words," he said, "they are moving to roll back Roe v. Wade. That is going to be the next move by this president."
Pro-lifers certainly hope so, but it will take a lot more than Brett Kavanaugh -- or even the Supreme Court -- to accomplish that. The more justices chip away at the rulings like Roe or Casey v. Planned Parenthood, the more important the states become. In many ways, that's where the battle for life has made its greatest gains. We talked yesterday about the incredible wave of pro-life legislation that's been sweeping across the country since the most pro-abortion president in history took office eight years ago. "After new restrictions enacted in 2017," the pro-abortion Guttmacher Institute points out that "29 states have adopted enough abortion restrictions to be considered either 'hostile' (6 states) or 'extremely hostile' (23 states) to abortion rights, with Iowa and West Virginia entering the hostile group for the first time."
If the Supreme Court is out of reach, the Left's attention will turn to the states, where, surprisingly, most -- including the bluest ones -- don't have laws "guaranteeing a right to abortion." The New Republic is beating that drum now. "Most states do not have laws, and a number of Democratic-leaning states have either failed to adopt measures that enshrine a positive right to abortion, or, as in New York, they recognize a limited right to abortion that's seemingly out of step with their states' politics. Some, like New Mexico and Massachusetts, even have archaic bans on the procedure that could theoretically come into play again." Instead of sitting around and wringing their hands, liberal activists are trying to light a fire under states that took abortion for granted under Roe.
Suddenly, the few pro-abortion governors and state legislatures that are left are racing to convene special sessions (like Governor Gina Raimondo of Rhode Island) or furiously working to update the state's laws. In places like Massachusetts, "the state still has a nineteenth-century abortion ban on the books, in addition to laws requiring elective abortions to be performed in hospitals and banning the sale of contraception to unmarried women."
The work for pro-lifers won't end when Roe v. Wade does. Conservatives have to continue making the case for the unborn, understanding that the biggest debate for life is in their home states. A more balanced court doesn't mean this issue goes away -- it means elections are that much more important. Are you paying attention to yours?
Tony Perkins' Washington Update is written with the aid of FRC senior writers.