A federal judge reluctantly voted to block several pro-life laws, but urged the Supreme Court to overturn its landmark 1973 decision Roe v. Wade that imposed abortion on all 50 states.
Judge Amul Thapar said in a September 10 Sixth Circuit Court of Appeals decision that as a lower court judge he was “bound by the Supreme Court’s decisions” to strike down Tennessee’s Heartbeat Act. At the same time, he said it is time for Roe to be reversed.
President Donald Trump had nominated Thapar to the Court of Appeals in 2017 and had placed him on his shortlist for a Supreme Court nomination.
“Roe and [Planned Parenthood v. Casey] are wrong as a matter of constitutional text, structure, and history,” Thapar wrote in his partial dissent. He criticized Roe for creating a separate approach to law than what is generally recognized by the courts.
“There are rules for most cases, and then there are rules for abortion cases. This case proves the point,” Thapar said. Under Roe, Thapar argued, lower federal courts had to overturn laws passed by individual states.
“By manufacturing a right to abortion, Roe and Casey have denied the American people a voice on an important political issue,” Thapar argued. He said that the two main judicial philosophies, originalism and the living Constitution approach, should both lead to a reversal of Roe.
“The Roe/Casey framework doesn’t just conflict with the original understanding of the Constitution — it cannot be justified under any modern approach to constitutional interpretation,” Thapar said. “Even living constitutionalism, taken seriously, permits Tennessee’s (and many other states’) efforts to combat fetal pain. After all, the living constitution theory considers evolving standards of decency.”
He noted that states have passed restrictions on abortions, polling has shown support for abortion limits, and the United States joins just seven other countries in allowing abortions past 20 weeks.
The rest of the dissent further explores the false data and assertions made by NARAL in order to get the Court to overturn abortion restrictions in 1973.
The Court will have an opportunity to reverse Roe v. Wade in the new term, when it will take up Jackson Women’s Health Org v. Hobbs.
A Fifth Circuit Court of Appeals decision upheld the 15-week abortion restriction. One federal judge similarly said he had to uphold the law because of Roe but urged the reversal of abortion precedents.
“The opinion issued by the district court displays an alarming disrespect for the millions of Americans who believe that babies deserve legal protection during pregnancy as well as after birth,” Judge James Ho, a Trump-appointee, wrote in December 2019. He said his colleagues disregarded the views of Americans who believe “abortion is the immoral, tragic, and violent taking of innocent human life.”
“Because Casey establishes viability as the governing constitutional standard, I am duty bound to conclude that the district court did not abuse its discretion in forbidding discovery and fact development on the issue of pain,” Ho said. “But neither would it have been an abuse of discretion if the district court had permitted discovery and fact development on the issue of pain.”
Sen. Josh Hawley (R-MO), who has said he would not vote to confirm any judges who support Roe, praised Thapar’s dissent.
“Students of the law — and anyone who cares about the Constitution — should read Judge Amul Thapar’s dissent today,” he tweeted. “He explains in unanswerable detail why abortion is not a constitutional ‘right’ — and why courts’ efforts to overrule the people’s voice are wrong.”
“For those wondering what a decision overturning Roe can and should look like, see Judge Amul Thapar’s separate opinion … Thapar’s a legal rock star that should be on SCOTUS,” President Trump’s former Health and Human Services Office of Civil Rights director Roger Severino said.
The above comes from a Sept. 14 story in LifeSiteNews.
i am heartened that the judge wrote what he did. But I wish he had allowed the laws to stand.