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'The Abortion Distortion'

The late Justice Antonin Scalia often critiqued the U.S. Supreme Court for what he called “the abortion distortion.” By this he meant the Court’s refusal to follow its own rules when it came to abortion cases, and its tendency to twist itself into fresh legal and logical contortions in order to rule in favor of the “abortion right” imposed by Roe v. Wade. We’ve been given a front-row seat to the latest rendition of “the abortion distortion” in June Medical Services v. Russo.

In 2014, Louisiana passed Act 620 in response to concern over the conduct of abortionists and the risk they posed to vulnerable women. Kermit Gosnell’s trial in Philadelphia was in the news—making known horrific details of unsanitary conditions at his abortion facility as he was convicted of three first-degree murder charges for killing babies who had been born alive, and involuntary manslaughter of one woman during an abortion procedure. Louisiana, historically, had a bad record of in-state abortion mills with a reputation for unsanitary conditions and ethical violations.

Louisiana law already required doctors who performed outpatient surgeries to have admitting privileges at a local hospital. This requirement was common-sense. It meant that doctors preforming surgeries had to demonstrate, as part of the process of acquiring those privileges, a higher surgical competency than required by a simple medical license. It was, in part, a higher-qualification screen to keep out incompetent surgeons. Abortionists were not subject to those requirements until Act 620 passed. They immediately challenged the law.

During the case, directors of three abortion mills in Louisiana revealed they did not run background checks on their abortionists, did not inquire into their previous training, felt it was not up to them to judge whether those they hired were capable as long as they had a medical license, and in the case of one clinic, hired ophthalmologists and radiologists to perform abortions.

State senator Katrina Jackson, a Democrat, wrote Act 620 precisely to bring this appalling state of affairs to an end. Her bill sailed through both houses of the Louisiana legislature and was signed into law. On June 30, after six years in court, the U.S. Supreme Court struck it down. Justice Samuel Alito, echoing Justice Scalia, said in dissent that “the abortion right recognized in this Court’s decisions is used like a bulldozer to flatten legal rules that stand in the way.”

Ironically, the more dangerous and incompetent a state’s abortionists are, the more difficult it is under the Supreme Court’s current jurisprudence to kick them out or clean them up. When the Supreme Court is confronted with a law involving abortion, its made-up constitutionality test hinges almost entirely on whether the law will have the effect of making ready access to abortion more difficult. Under Act 620, if abortionists can’t get admitting privileges, ready access to abortion decreases by default.

Abortionists have a bad reputation in the medical community not only because of the barbaric nature of their work but also because it is often the profession’s castoffs who are performing abortions in the first place. No successful ophthalmologist or radiologist would take a job performing abortions.

Neither Louisiana Democrats (who introduced the bill), nor Republicans (like the governor who signed it into law), nor hospitals (who refused to grant admitting privileges), nor the people of Louisiana want these incompetent butchers practicing their brand of “medicine” inside their state borders. They have been forced by the “abortion distortion” to accept it.

So, what to do?

Defeat calls for renewed courage and greater creativity. Despite our setbacks, many existing pro-life state laws—in Nebraska and elsewhere—have proven quite effective. We need more of them. Laws that protect life and help mothers now, but also continue to challenge the Court in new ways, must continue to be a priority until the twisted logic of Roe collapses under its own contradictions—whenever, in God’s Providence, that may be. We will continue to fight the good fight in legislatures and courtrooms.

We also need to understand the Supreme Court will not be our salvation. June Medical is a reminder that pinning the greater weight of our hopes on the courts is unwise. Ministries that are effective at helping women choose life must be a priority for pro-life people, and even more vital is fulfilling our primary duty to friends, family, strangers, and enemies in this world—to be, as St. Gregory of Nyssa says, “another Christ” to them all.

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