Author archives: Katherine Beck Johnson

The Supreme Court Protects Religious Liberty—Barely

by Katherine Beck Johnson

June 17, 2021

Catholic Social Services’ (CSS) 9-0 victory before the Supreme Court today in Fulton v. City of Philadelphia, while unanimous, can’t be allowed to overshadow serious differences among the justices on how to approach religious liberty.

This case involved CSS’s ability to operate in accordance with their Catholic faith. The City of Philadelphia had pressured CSS to either give up the Church’s teaching on marriage and family or give up their ministry of finding children loving homes. CSS refused to go against its strongly-held religious belief that marriage is between a man and a woman. After years of litigation, the Supreme Court today held that Philadelphia violated the First Amendment by allowing secular but not religious exceptions to their fostering contracts, like the one held by CSS.

To be clear, this decision was a win. For now, CSS will be able to operate in accordance with its religious beliefs and continue placing children in most need. The organization will not be forced to shut its doors because it refuses to compromise its faith.

Unfortunately, the win was narrow, coming up short of a huge victory. The Supreme Court did the bare minimum to protect CSS and other faith adherents. It was only because Philadelphia had other exceptions, but not religious ones, that the Court found the city in violation of the First Amendment. As Justice Alito noted in his concurrence, the secular exceptions were essentially boilerplate language in the city’s contract that they did not enforce and will be very easy for them to delete—effectively leaving CSS with no protection. As Justice Alito said, “[t]his decision might as well be written on the dissolving paper sold in magic shops.”

The Court should have overturned Employment Division v. Smith, which held that a law is constitutional as long as it is generally applicable and does not target religion. Smith was wrong when it was decided, and it is wrong today. Justice Gorsuch was correct when he said, “[o]ne way or another, the majority seems determined to declare there is no “need” or “reason” to revisit Smith today. But tell that to CSS. Its litigation has already lasted years—and today’s (ir)resolution promises more of the same.”

The ever-growing demands from the Left and their radical gender ideology being imposed on more and more of America make it increasingly impossible for a person to live out their Christian faith while operating in the foster care and adoption space (or many other aspects of society). Evidently, the City of Philadelphia would rather children languish in the system without loving homes than allow CSS to operate in accordance with its faith. Catholics in Philadelphia and throughout our country deserve better than that—and are afforded more than that in our Constitution.

Although today’s opinion allows CSS to continue operating without compromising its faith, that likely won’t be the case for long. Soon, the Court will have to answer if a city can force a religious agency to violate its beliefs if no secular exceptions were provided. The answer is no, and that should have been the answer today. Justices Roberts, Barrett, Kavanaugh, Breyer, Sotomayor, and Kagan refused to answer this.

Today, Justices Alito, Thomas, and Gorsuch were the only members of the nation’s highest court who demonstrated awareness of the pressing need to revisit Smith and rightly protect religious adherents. Let us hope more justices join them in the future.

Texas Takes a Stand for Religious Belief

by Katherine Beck Johnson

April 28, 2021

Liberal states have been attempting to demand total adherence to their ideology for a while now. The Left is no longer interested in co-existing, but rather in demanding every person adheres to their views on sexuality and marriage. The latest target? Texas. But California should know better than to mess with Texas. The Lone Star State is fighting back.

This case arose from the following string of events: California banned state-funded or state-sponsored travel to Texas. Why? Because Texas respects the religious beliefs of those who believe marriage is between a man and a woman and that a mother and father is best for children. Texas acknowledges the religious freedom of faith-based child welfare providers within its own border. California is so bothered by Texas allowing its own citizens to freely live out their faith that they have decided that nobody can travel there if their travel is being sponsored by the state. It’s unclear if California would allow any state-funded travel to China, where an actual genocide is occurring. Yet, California is taking a hard stance again Christians living out their faith in Texas.

Texas went straight to the Supreme Court to file a complaint against California’s unconstitutional action. Texas was not alone, as 19 other states joined an amicus in support of Texas standing up to the demands of the woke. While the Supreme Court denied what is known as a “bill of complaint” earlier this week, Texas did not fully lose the case. The Court’s denial simply means that Texas needs to go through the lower courts first, as the Supreme Court did not have the proper jurisdiction at the moment—a point with which Justices Alito and Thomas disagreed. No justice commented on the merits of the case, but Alito and Thomas would have accepted the case without it working its way through lower courts.

For now, Texas lives to fight on another day, and we can expect to see this case and the issue it deals with arise again in the future.

Despite Roe Polling, a Majority of Americans Support Stronger Abortion Restrictions

by Laura Grossberndt , Katherine Beck Johnson , Ruth Moreno

October 23, 2020

Opinion polls reveal some cognitive dissonance in Americans’ minds concerning abortion laws. Although most Americans say they support Roe v. Wade, the 1973 Supreme Court decision that legalized abortion nationwide, most also favor significant abortion restrictions. Why the seeming inconsistency?

First, some background. In Roe, the Supreme Court ruled that abortion is protected under the U.S. Constitution. This decision struck down many state laws that had restricted abortion. It also severely limited the extent to which states could write their own abortion laws. The Court correlated the permissibility of different kinds of abortions to the three trimesters of pregnancy:

  • First trimester: States cannot restrict abortion.
  • Second trimester: Regulations designed to protect a pregnant woman’s health, but not to further a state’s interest in potential life, are permitted.
  • Third trimester: States can completely outlaw abortion, except when “necessary to preserve the life or health of the mother.”

Under Roe, no restrictions on abortion in the second or third trimesters are mandated and are forbidden in the first trimester. Therefore, abortion through all nine months of pregnancy is the default unless Congress or the individual states pass laws restricting it.

Planned Parenthood v. Casey did away with Roe’s trimester framework and created a new rule: a state cannot impose an “undue burden” on a woman’s attempt to obtain an abortion pre-viability.

National polls indicate strong support for Roe. Sixty percent (Gallup) and 66 percent (NBC News) of Americans support it, while only 29 percent of Americans favor overturning it (NBC News). Roe, then, appears to be a settled court case in the minds of the American people.

However, polls indicate a greater variation in Americans’ opinions when it comes to abortion itself. Only 27 percent of Americans think abortion should be legal “in all cases” (ABC News by Langer Research Associates), and seven in 10 Americans would like to see abortion limited to the first three months of pregnancy at most (Knights of Columbus and Marist). The latter poll found that 52 percent of Americans think women should be required to see an ultrasound of her unborn child prior to receiving an abortion. Furthermore, the poll found that 80 percent of Americans think laws can protect both a mother and her unborn child.

A mere 18 percent of Americans support the legalization of abortion up until birth (NPR and Marist), and 54 percent want to see more restrictions on abortion than there currently are (CBS). Sixty-five percent of Americans support a required 24-hour waiting period for an abortion (The Kaiser Family Foundation). Like the Knights of Columbus and Marist poll, the Kaiser poll found that 52 percent support a mandatory ultrasound viewing by mothers.

Why this seeming inconsistency between the American public’s opinions on Roe and abortion itself? Tim Carney of the American Enterprise Institute posits an answer: a poll’s outcome depends on how the survey questions are asked. Many Americans are unaware of what Roe actually says about abortion, mistakenly believing that it only protects abortion through the first few months of pregnancy. When asked whether they would like to see Roe overturned, most Americans say no, because most Americans are neither entirely pro-life nor pro-choice. Instead, most Americans favor abortion laws that restrict most abortions but provide exceptions for early-term abortions, abortions in cases of rape or incest, or when the mother’s health or life is in grave danger.

Roe v. Wade permits abortion in far more circumstances than these. If survey respondents knew that Roe essentially allows abortion in all cases at any stage in pregnancy up to the moment of birth, support for the court decision would probably plummet among Americans with more moderate views. Americans’ ignorance serves the pro-choice lobby and is likely why polls indicate public support for Roe.

As long as the largely pro-choice mainstream media can convince moderates that Roe v. Wade aligns with their beliefs, the Supreme Court will feel pressured into upholding its 1973 decision despite the fact that it goes against the will of the American people.

To see where your state stacks up on permitting later-term abortion under Roe, see our state-by-state pro-life map.

The Strange Cognitive Dissonance of the Democrats on Life

by Katherine Beck Johnson

October 15, 2020

The final day of Judge Amy Coney Barrett’s confirmation hearing consisted of witnesses. The Republican and Democratic senators of the Senate Judiciary Committee each called upon individuals who expressed their personal opinions on why or why not Barrett should be confirmed to the Supreme Court.

The Republicans called upon former clerks, students, and colleagues of Judge Barrett. Each spoke highly of Barrett’s intellect, compassion, and legal skills. In contrast, the Democratic witnesses all opined on the danger they thought a Justice Barrett would pose to the country.

One of the Democratic witnesses, Crystal Good, described herself as a “reproductive rights advocate.” She spoke about her experience being pregnant as a 16-year-old and going to court to obtain an abortion without parental consent. Sadly, Good claimed that killing her unborn child allowed her to take control of her life. She went on to say that Barrett’s confirmation would prevent abortions that millions of women rely on each year.

The next witness the Democrats called was Stacy Staggs, a mother of twins born prematurely. The larger twin weighed just two pounds at birth, while the smaller twin was under two pounds. The twin girls spent time in the neonatal intensive care unit (NICU), and Staggs was unable to hold her daughters for weeks. In her testimony, Staggs spoke about the necessity of her children being provided health care. She alleged a Justice Barrett would take away the necessary health care that saved her children’s lives.

Are the Democrats aware of the cognitive dissonance these two testimonies create? One witness asserted that she should have the right to end her unborn child’s life. The subsequent witness detailed how she fought for the lives of her premature children. One witness denied the humanity of the unborn, while the subsequent witness acknowledged the humanity of these precious little lives. This cognitive dissonance should not be surprising. Democrats claim to care about the health and wellbeing of children. However, in addition to supporting the termination of life in the womb, Democrats in Congress have repeatedly blocked legislation that would ensure medical care to children born alive after a failed abortion. It’s clear that the Democrats only value life when that life is wanted.

A child’s right to life should not depend on whether the parents want him or her. Life is an inherent human right. The aforementioned testimonies at the confirmation of Judge Amy Coney Barrett demonstrate that Democrats only want to protect the right to life of children who are wanted. This picking and choosing which children “deserve” life must end.

Roe Isn’t Super … or Super-Precedent

by Katherine Beck Johnson

October 13, 2020

In the second day of Judge Amy Coney Barrett’s Senate confirmation hearing, many members of the Senate Judiciary Committee, particularly Sen. Amy Klobuchar (D-Minn.), questioned the Supreme Court nominee about the concept of “super-precedent.” Barrett has previously written that seven cases are currently understood by legal academics as super-precedent, including Brown v. Board of Education. She defined super-precedent as “cases that no justice would overrule, even if she disagrees with the interpretative premises from which the precedent proceeds.” Barrett said at the hearing that, according to this definition, Roe v. Wade does not qualify as super-precedent.

When asked why Brown is super-precedent and Roe is not, Barrett explained that Brown is super-precedent because the Supreme Court decided that the “separate but equal doctrine” is unconstitutional and because the American people have accepted the Court’s decision as settled law. Segregation is a horrible stain on our nation’s history. Thankfully, it is now accepted that racism and segregation is a moral evil that will no longer be tolerated in our country. Because there are no legal challenges advocating for segregation, Brown is clearly settled law.

Barrett said Roe does not qualify as super-precedent because the American people have not accepted this Supreme Court decision that legalized abortion in all 50 states. She is right. Many American people believe abortion is a moral evil that should not be tolerated in our country. The Republican Party platform supports a human life amendment to the Constitution clarifying that the unborn are protected by the 14th Amendment. The March for Life, which draws hundreds of thousands of people from all over the country, takes place every January in Washington, D.C. on the anniversary of Roe.  

Quite significantly, a number of states have passed strong pro-life laws in recent years, and there are also numerous lawsuits currently challenging abortion.

Last year, Alabama passed a comprehensive law affirming and protecting human life at all stages—a model for how to fully protect life. States have defunded abortion and abortionists. Other states like Colorado are proposing ballot measures to protect life this fall. Certain states like Nebraska have passed dismemberment bans, and others have passed laws protecting the dignity of the remains of the unborn. Arkansas, Georgia, Iowa, Kentucky, Louisiana, Mississippi, and Ohio have all passed heartbeat bills. These bills seek to prohibit abortion when a heartbeat can be detected, which can be as early as six weeks into pregnancy. States have passed laws that aim to protect the targeting of children with Down syndrome in the womb or other special needs. States have passed laws protecting children from being aborted simply because of their race or gender. The eugenic act of ending children’s lives based on their identity is another reason why many Americans refuse to accept Roe as settled law.

By contrast, no major party has a platform advocating for segregation. No states are calling for segregation to be legalized. There is no annual march in support of segregation. The notion of “separate but equal” is viewed by Americans as being unconstitutional. Therefore, Brown deserves to be deemed super-precedent.

While our country has overcome the evil of segregation, the stain of abortion is still with us. Many Americans long for a day when abortion’s unconstitutionality is settled law, and the most vulnerable among us are protected under the law. Until that day, we will continue to fight for the unborn to have the right to life. As long as Americans refuse to accept it, Roe will remain unsettled law that does not deserve to be considered super-precedent. Judge Amy Coney Barrett is correct when she says Roe v. Wade is not super-precedent.

The Court for the Common Good?

by Katherine Beck Johnson , Arielle Leake

July 6, 2020

The recent ruling in Bostock v. Clayton County has once again brought the judiciary’s role to the forefront of public discussion. As Justice Alito pointed out in his dissent, what the Court did in Bostock was legislate. By redefining sex to mean “sexual orientation” and “gender identity,” they changed the meaning and application of the 1964 Civil Rights Act without Congress even lifting a finger. However, this is not the first time that the Court has overstepped its bounds as the independent judiciary. In Obergefell v. Hodges, the Court took it upon itself to redefine “marriage.” In Roe v. Wade, they essentially created a “constitutional right” to have an abortion.

What is the proper role of the courts? President Reagan summed it up well in his speech at Justice Anthony Kennedy’s swearing-in:

The role assigned to judges in our system was to interpret the Constitution and lesser laws, not to make them. It was to protect the integrity of the Constitution, not to add to it or subtract from it—certainly not to rewrite it. For as the framers knew, unless judges are bound by the text of the Constitution, we will, in fact, no longer have a government of laws, but of men and women who are judges. And if that happens, the words of the documents that we think govern us will be just masks for the personal and capricious rule of a small elite.

Each of the three federal branches is equal, independent, and tasked with fulfilling its role under the Constitution. According to Article III of the Constitution, the judicial branch’s role is to interpret and apply the “Constitution, the laws of the United States and treatises made, or which shall be made, under their authority.” The Court checks the other two branches through judicial review. However, its primary function—as the Framers intended and as evidenced by the Constitution, The Federalist Papers, and other documents from that time—is to act as the federal government’s enforcement arm by applying the laws. It is not the job of unelected judges to make laws or change laws, as they have done in Bostock, Roe, and Obergefell. Instead, they are charged with basing their judgments on the objective meaning of laws and the Constitution.

Originalism and textualism are usual tools of judicial interpretation supported by many conservatives. However, there is a new theory beginning to emerge. The theory was proposed by Adrian Vermeule, a conservative professor of constitutional law at Harvard, and has been labeled “common-good constitutionalism.” He describes this approach as being “based on the principles that government helps direct persons, associations, and society generally toward the common good.” He advocates for reading into the “majestic generalities and ambiguities” of the Constitution, principles that advance the “common good.” Rather than focusing on the individual, he says the focus would be on a “powerful presidency ruling over a powerful bureaucracy” that will advance society’s needs as a whole, even if it overrides an individual’s private rights. Vermeule says originalism has served its purpose, and now conservatives should begin advocating this “authoritative rule for the common good” to guarantee that ideas such as life, family, and natural marriage are elevated and promoted in society. He says this view has a basis in the Constitution, but instead of being wedded to the original meaning, judges and other government officials will read morality into the text.

It is important to think about all of the implications of various judicial philosophies. While common-good constitutionalism has not become mainstream yet, it is beginning to pick up followers in conservative legal thought—especially after Justice Gorsuch’s disappointing holding in Bostock. Yet, many staunch originalists and textualists have fought back against Professor Vermeule’s theory, arguing that a judge must always remain neutral. It is too soon to know whether a new era in conservative judicial interpretation has arrived.

Katherine Beck Johnson is Research Fellow for Legal and Policy Studies at Family Research Council.

Arielle Leake is a Policy & Government Affairs intern at Family Research Council.

A Loss for Women and Children at the Supreme Court

by Katherine Beck Johnson

July 1, 2020

Earlier this week, the Supreme Court issued its much-anticipated ruling in June Medical Services v. Russo, the first major abortion case the Court has taken up since President Trump appointed Justices Gorsuch and Kavanaugh. The Court’s ruling struck down Louisiana’s law requiring abortionists to have hospital admitting privileges. While Justices Gorsuch and Kavanaugh were both in the dissent, Justice Roberts proved to be the disappointing fifth vote that struck down the common-sense law.

Louisiana’s admitting privileges law was in the best interest of women. If something were to go awry during an abortion, the abortionist would be able to get the woman admitted to the hospital and explain to her doctors precisely what had occurred. If the abortionist does not have admitting privileges, the woman might be forced to call an ambulance and explain what had happened herself—a heavy burden to place on the woman, and quite impossible if she is unconscious. Requiring admitting privileges is a common-sense regulation that applies to every other outpatient surgical center in Louisiana. Nevertheless, liberal justices and Justice Roberts were unwilling to uphold the requirement when applied to abortion clinics.

In a previously decided case, Whole Woman’s Health v. Hellerstedt, Texas’s admitting privileges law and a few other abortion regulations had been at issue. The Court held that Texas’ law created an undue burden. Justice Kennedy provided the decisive fifth vote that struck down the pro-life and pro-woman law. Justice Roberts dissented.  

Whole Woman’s was a poorly decided case that needed to be overturned. The Court had the chance to overturn it in June Medical with Justice Kennedy off the Court and two new Republican-appointed justices. Instead, once again, the Court struck down a law aimed at saving unborn lives and protecting women’s health.  

Justice Roberts dissented in Whole Woman’s, yet he voted with the liberal justices in June Medical to strike down Louisiana’s admitting privileges law. Interestingly, in his concurrence, Justice Roberts said that he still agrees that Whole Woman’s Health was wrongly decided, yet said he is bound by stare decisis to uphold the law. Stare decisis is a legal principle that means you decide a case bound by precedent, regardless of whether the precedent is correct. Roberts claims that “for precedent to mean anything, the doctrine must give way only to a rationale that goes beyond whether the case was decided correctly.” Yet, Roberts has not felt bound by stare decisis in plenty of his other opinions, including Citizens United v. FEC. When it comes to abortion, however, Justice Roberts suddenly feels his hands are tied. Regardless, if a legal precedent is wrong, he and the Supreme Court should do the right thing and overturn it. With women and children’s lives on the line, Justice Roberts chose to adhere to a precedent he acknowledges is wrong.

Justice Roberts’ adherence to stare decisis is problematic for the future of abortion law at the Supreme Court. If Justice Roberts thought adhering to a five-year-old precedent of knocking down hospital admitting privileges is so embedded in our country’s jurisprudence to deserve stare decisis, he almost certainly views Roe v. Wade and Casey v. Planned Parenthood as deserving of stare decisis, even if he disagrees with the opinions. This indicates that while judicial nominees are extremely important, they can be unreliable. It is no longer enough for the pro-life movement to depend on Republican-appointed justices and hope they will do the right thing on abortion.

Women and children lost at the Supreme Court on Monday. The abortion industry won. Once again, abortionists proved that rules don’t apply to them; they are exempt from laws. Despite this disappointing loss, the pro-life movement should not lose hope or remain discouraged. The fight for civil rights will continue—with or without Justice Roberts on our side.

Supreme Court Abandons Human Dignity in Russo but Upholds It in Open Society

by Katherine Beck Johnson , Kaitlyn Shepherd

June 30, 2020

The disappointing decision in June Medical v. Russo dominated the airwaves yesterday. However, there was a win for human dignity in another Supreme Court case. In Agency for International Development v. Alliance for Open Society International, Inc., the Court held that the Leadership Act’s Policy Requirement—which requires organizations receiving federal funds to combat HIV/AIDS to adopt a policy explicitly opposing prostitution and sex trafficking—is constitutional as applied to domestic organizations’ foreign affiliates. We applaud the Court’s decision. The Leadership Act’s Policy Requirement is a common-sense measure that promotes the human dignity of all people and especially women, who are most frequently the victims of prostitution and sex trafficking.

In 2003, congressional findings indicated that HIV/AIDS had “assumed pandemic proportions.” Data showed that, since the 1980s, the disease had killed more than 25 million people, infected an additional 40 million people, and orphaned an estimated 14 million children worldwide. In response, the United States Leadership Against HIV/AIDS, Tuberculosis, and Malaria Act of 2003 (the Leadership Act) “outlined a comprehensive strategy to combat the spread of HIV/AIDS around the world.” As part of this strategy, the Act prescribed efforts “to address the social and behavioral causes of the problem” and authorized the president to allocate funds to organizations that combat HIV/AIDS overseas. With a few exceptions, only organizations that adopted “a policy explicitly opposing prostitution and sex trafficking” were eligible to receive funds.

In 2005, a group of United States-based organizations challenged the Policy Requirement. They argued that “adopting a policy explicitly opposing prostitution may alienate certain host governments, and may diminish the effectiveness of some of their programs by making it more difficult to work with prostitutes in the fight against HIV/AIDS.” Some organizations on the left, joined by some libertarians, advocate for the legalization of prostitution (which they call “sex work”), ostensibly to allow government regulation of health and safety. They argue that a distinction can be made between “sex work” and “sex trafficking” and believe that legalization would help to empower “sex workers.” Prostitution is inherently degrading to women, and there is no evidence that its legalization makes this practice less exploitative. When it comes to fighting HIV/AIDS, discouraging a “profession” that inherently involves the high-risk behavior of sexual relations with multiple partners should be part of our national strategy. Congress held this view, and insisted that U.S. aid recipients overseas do the same.

In 2013, the Supreme Court held that the Policy Requirement was unconstitutional as applied to American organizations operating overseas because it compelled these organizations to adopt the government’s stance on prostitution and sex trafficking as a condition of receiving the funds.

In 2015, the organizations renewed their challenge to the Policy Requirement. They opposed the government’s continued application of the Policy Requirement to their “closely aligned” foreign affiliates, organizations that shared the same “name, logo, brand, and mission” but were legally separate entities incorporated under the laws of other nations. The Second Circuit Court of Appeals struck down the Policy.

In its decision yesterday, the Supreme Court reversed the decision of the Second Circuit. Writing for the majority, Justice Kavanaugh noted that long-standing principles of American law compel the conclusion that “[a]s foreign organizations operating abroad, plaintiff’s foreign affiliates possess no rights under the First Amendment.” President Trump’s other appointee, Justice Gorsuch, also joined the majority. The Court was unpersuaded by the organizations’ argument that the speech of their foreign affiliates would be misattributed to them because the organizations were not compelled by the government to affiliate with these foreign organizations or to espouse their message. Any misattribution would be a result of their own actions, not those of the government.

The Court’s decision has important implications for human dignity. The Bible teaches that both men and women are created in the image of God and that each person is “fearfully and wonderfully made.” This means all people possess inherent dignity, worth, and value. By objectifying women, the sex trafficking industry fails to acknowledge the human dignity of women. Congress itself recognized this, stating that “[p]rostitution and other sexual victimization are degrading to women and children and it should be the policy of the United States to eradicate such practices.” The Court’s decision yesterday should be celebrated because requiring organizations to adopt a policy explicitly opposing prostitution and sex trafficking promotes the dignity of all people around the world. 

Katherine Beck Johnson is Research Fellow for Legal and Policy Studies at Family Research Council.

Kaitlyn Shepherd is a legal intern with Policy & Government Affairs at Family Research Council.

Is Judge Duncan an “Ultra-Conservative” or Just an Originalist?

by Katherine Beck Johnson

June 16, 2020

The Guardian put out a piece attempting to criticize Judge Stuart Kyle Duncan on the Fifth Circuit Court of Appeals. The piece only succeeded in highlighting the author’s fundamental misunderstanding of the role of a judge. It is not the role of a judge to weigh into what the law should be, but rather the judge interprets what the law is, the law enacted by the people’s representatives. 

Many of President Trump’s judicial nominees are originalist and textualist. While these may be considered “conservative” judicial philosophies, the result is not always conservative policy goals. If the judge is interpreting a “liberal” law, the text will lead to a result that is liberal. The basic goal of originalism and textualism is that the people, not unelected judges, say what the law ought to be. The judge’s role is to say what the law is, or what the people enacted through their elected officials. Therefore, the Guardian’s fearmongering piece claiming that the judges appointed by President Trump have any role in abortion law is false. It isn’t Trump-appointed judges, it’s the people that have the role of saying what abortion laws should prevail in their states. Judge Duncan is no exception to this rule.

The piece quotes the legal director at Alliance for Justice saying, “For the overwhelming number of cases, the constitutional rights of the people in Texas, Louisiana and Mississippi will be made by Kyle Duncan and the other ultra-conservatives on the fifth circuit.” This is false. The rights of the people will be made by the people—not the judges on the fifth circuit.

While a lawyer in private practice, Judge Duncan advocated for Louisiana’s law that is currently before the Supreme Court: June Medical v. Russo. This law requires abortionists to have admitting privileges at a nearby hospital. It’s a commonsense law that demands abortion facilities abide by the same rules as all other outpatient surgical centers. When Judge Duncan was in private practice, he defended this law on behalf of the state of Louisiana until he became a judge. The Fifth Circuit, where Judge Duncan now sits, upheld this law. Judge Duncan followed proper judicial protocol and recused himself from the case because he had advocated for Louisiana when he was in private practice. He has clearly conducted himself in an ethical manner on the Fifth Circuit.

The Guardian piece is yet another example of a judge being attacked for their faith, as the piece specifically points out Judge Duncan’s Catholic faith. In America, one’s religion does not prevent them from being selected for a job. Judge Duncan’s history advocating for religious liberty is another aspect of him that the piece viewed as problematic. A judge that recognizes our first freedom, our freedom of religion, is not problematic. Judge Duncan understands just how important religious liberty is to our Constitution.

The Constitution makes it clear that the role of a judge is to say what the law is and not what the law ought to be. The people of the United States are the ones charged with saying what the laws that dictate their lives should be. Judge Duncan knows his role as a judge and has done a wonderful job. We need more judges like Judge Duncan.

The Sixth Circuit Allowed Abortion Activists to Challenge a Pro-Life Law. The Supreme Court May Soon Stop the Practice.

by Katherine Beck Johnson

June 5, 2020

Abortion was back in the federal appellate courts this week, this time because of a challenge to Kentucky’s dismemberment ban. In April 2018, Kentucky House Bill 454 was signed into law. It prohibited abortions that “result in the bodily dismemberment, crushing, or human vivisection of the unborn child” if the child is 11 weeks or older.

Kentucky wanted to outlaw dismemberment defined as “a procedure in which a person, with the purpose of causing the death of an unborn child, dismembers the living unborn child and extracts portions, pieces, or limbs of the unborn child through the use of clamps…” This is certainly not the first time a type of abortion procedure has been outlawed. In Gonzalez v. Carhart, the Supreme Court upheld Congress’s law that outlawed partial-birth abortion, a procedure that involves partially delivering the baby alive before ending the life.

Two judges in the Sixth Circuit struck down the Kentucky law. The majority lamented about how women have a right not to be burdened while obtaining an abortion. However, the majority failed to acknowledge that a woman could still obtain an abortion, just not one using the dismemberment method. Judge John Bush, a Trump appointee, wrote his strongly worded dissent. Bush spoke about the conflict of interest between abortion providers representing women in court. Judge Bush noted that two abortion providers and a clinic were claiming to advocate on behalf of women. Not a single party to the case had their constitutional rights directly impacted.

Judge Bush noted that, for some reason—whether financial, litigation strategy, or otherwise—EMW Women’s Surgical Center refused to obtain the training to perform fetal demise (kill the unborn child), regardless of the fact that studies indicate many women would choose fetal demise before a dismemberment procedure. It was clear from oral arguments that EMW was not looking out for what was best for women. When the abortion provider was asked what would happen if a woman did request fetal demise, the answer was that nothing would be done to honor her request.

Whether abortion providers should have the ability to automatically represent women in court is a question currently before the Supreme Court in June Medical Services v. Russo—a case in which the Court will be issuing an opinion in the coming weeks. Family Research Council filed an amicus brief arguing that there is no statutory authority granting abortion providers the ability to automatically stand in for women. There is a clear conflict of interest; abortion providers do not have women’s best interests in mind, and they should not be allowed to represent them in court. Abortion providers are looking out for themselves and their profit, which is a far cry from women’s health.

Let us hope the Supreme Court keeps this in mind when it rules in Russo in the coming weeks. Women facing pressure from the abortion industry deserve to have their true interests looked after, and their voices heard. Pro-life voters across America deserve to have their choices respected.

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