Alabama judge finds right to gruesome abortion procedure and allows clinics near schools

by Daniel Horowitz

Late last week, I warned Alabama Republicans that if they accede to the tyranny from judicial supremacy, it would run much deeper than the issue of marriage and Judge Roy Moore. Well, on Thursday a federal district judge engaged in nullification and blocked the state’s common sense abortion regulations. Do these same impotent Republicans believe this is also the law of the land? This case is particularly poignant because it is a quintessential example of why the federal judiciary must be stopped by blunt force, irrespective of who wins the presidential election.

Myron Thompson, a puny district judge for the Middle District of Alabama used his misconstrued ‘judicial veto” to block Alabama’s law barring abortion clinics within 2,000 feet of a K-8 public school. The liberal Carter-appointed judge also blocked the portion of the law barring the use of the “dilation and evacuation” method of abortion commonly used in the second trimester to tear apart the baby with forceps [watch this video demonstration of the particularly gruesome procedure if you can stomach it].

While any lower judge will obviously uphold the underlying bad precedent of Roe and Casey, this decision is part of a disturbing trend of lower courts expanding the concocted right to an abortion to new extremes and precluding states from enacting common sense limitations and regulations on the procedure and on clinics. Evidently, not only is there a right to an abortion that never existed in the Constitution and since our Founding, but judges are now saying that any restriction on the clinic or any procedure at any time is burdensome. Judge Thompson opined that the restriction on clinics near schools would shut down too many abortion facilities and place a burden that is “particularly devastating for low-income woman.” He also said that requiring doctors to first stop the heartbeat of the baby instead of tearing it apart limb by limb places a gratuitous burden and risk on the mother.

Why do we even have elections anymore when district courts — which were created by Congress, not the Constitution — can decide every social and political issue of our time?

Consider the following perverse constitutional jurisprudence in the legal system: the government can ban guns within range of schools, even though carrying a gun is an unalienable right explicit in the Bill of Rights. At the same time, a state cannot regulate the most gruesome abortions and ban the practice within range of schools, even though there isn’t a mention of the word “abortion” in the Constitution.

The Long-term problem with lower courts shutting down red states

Remember, even in the best case scenario — if Republicans win the White House, Congress, and the majority of state legislatures — there will be almost no policy benefit to such an electoral outcome. The courts will nullify the few good policies that Republicans actually enact, which are few and far between. Abortion regulations are a superlative example of how the lower courts are shutting down the debate over issues squarely within the purview of state governments. States have been unable to get common sense regulations on abortion clinics or defunding of Planned Parenthood past a single appeals court.

What about the Supreme Court?

There is a widely held myth that the high court hangs in the balance pending the outcome of the presidential election. In reality, Anthony Kennedy is about as far left as the other four liberals on Fourteenth Amendment jurisprudence, especially as it relates to abortion. He already made it clear this year in Whole Woman’s Health v. Hellerstedt that not only is abortion a fundamental right, but states cannot enact reasonable regulations on clinics that will in any way limit access to abortions. Replacing Scalia with an originalist or blocking the appointment of a Hillary pick will not alter the balance because the Left already has five votes in the ‘super legislature’ on almost all social issues. And few legal experts believe Chief Justice John Roberts would overturn Roe.

Ironically, although we’ve chronicled a torrent of court cases in recent months inhibiting states from exercising basic state powers, it will get a lot worse if we actually elect conservatives. Most Republican legislatures are as useless as Republicans in Washington and drift like balloons in the wind. Commensurate with the degree of righteous initiative that we desire from elected conservatives will come the blowback from the entrenched forces of legal warfare. Pick your favorite policies you want to see enacted in your state and just understand that the Left has the ability to place the law in court within days and usually succeed in obtaining an injunction.

This is why we must think beyond the failed judicial strategy of the past half century. It’s time to restore the courts to their original mandate — interpreting the law, not nullifying it. One idea I propose in Stolen Sovereignty is to begin with the lower courts and block them from adjudicating broadly political cases concerning issues such as abortion, marriage, religious liberty, election law, and immigration enforcement.

As we’ve noted before, district and appellate courts are created by Congress. The legislative branch of government has the power to abolish those courts, so members of Congress can certainly regulate their jurisdiction. In 1812, the Supreme Court ruled that the lower courts “possess no jurisdiction but what is given them by the power that creates them, and can be vested with none but what the power ceded to the general government will authorize them to confer.”[1]

There is simply no reason a lower court judge should have the unilateral authority to veto every policy created by a legislature. However, there would still be an avenue for judicial review by bringing lawsuits in state court. The advantage here is that most state courts have some form of election or retention ballots for their judges. While plaintiffs would still have the ability to appeal directly to the Supreme Court, the limited resources of the high court would prevent it from intervening in many cases that the lower federal courts have been officiously asserting their will.

Thus, if by some miracle we have 20 Republican-controlled legislatures promoting good policy on an array of foundational issues, there is no way the Supreme Court could “police” them all like the numerous district courts do at present. All we need is a party actually committed to preserving the states and reining in the runaway judiciary.

[1] United States v. Hudson, 11 US 7 Cranch 32, 33 (1812).

Originally published at