The concern over the courts violating precedent when it comes to abortion typically cuts against pro-life rulings. But the courts have now violated precedent in favor of pro-choice activists, and it’s clear that the Supreme Court needs to lay down a clear standard.
U.S. District Judge Bernard Friedman became the first federal trial judge since 1992 to strike down a waiting period law, finding Tennessee’s 48-hour waiting period between consulting with a physician about abortion and undergoing the procedure to be unconstitutional. A three-judge panel on the 6th U.S. Circuit Court of Appeals then denied the state’s request to put a hold on Friedman’s decision while litigation continued, over the objections of Judge Amul Thapar.
The Supreme Court upheld waiting periods as a legitimate regulation on abortion in the 1992 case Planned Parenthood v. Casey. As Thapar said, “Since Casey, no federal appellate court has successfully struck down an abortion waiting period. Why? Because the Supreme Court says that waiting periods are constitutional.”
Tennessee’s waiting period law was ultimately reinstated six months after Friedman’s ruling, allowing the Supreme Court to avoid the state’s emergency appeal. But the current judicial environment surrounding abortion must be addressed by the Supreme Court sooner rather than later.
Supreme Court precedent apparently can’t stop judges from taking swings at something as benign as a waiting period law, but all pro-life legislation is effectively dead on arrival. Heartbeat bills in Georgia, Tennessee, and South Carolina are blocked within minutes of even being signed, with the Supreme Court showing no willingness to address the issue.
States are continuing to pass heartbeat bills, which prevent abortion once a fetal heartbeat is detected. Oklahoma and Idaho have both recently passed their own versions. But the Supreme Court plucking this issue from the hands of legislatures and making the courts the sole decision-makers on can be done with a fabricated right to abortion has given pro-abortion activists every systemic advantage.
The Supreme Court needs to redraw the line on the abortion issue, and it should be one that gives state legislatures more room to legislate. The court system, including the Supreme Court, is not supposed to be a political actor. On abortion, it’s time for them to stop acting like one.
