I don’t have to tell you that 2020 has been an up-and-down year for many reasons, including challenges to Americans United for Life’s fight for the human right to life. This summer brought the Supreme Court’s disappointing decision in June Medical Services v. Russo, but we found a silver lining in the decision that suggested that brighter days were ahead. We’re happy to confirm that in the nearly half a year since June Medical, the Pro-Life Movement has been notching victories.
Last week, in Memphis Center for Reproductive Health v. Slatery, the Sixth Circuit allowed a Tennessee law to go into effect that prohibits abortions based on the sex, race, or Down’s Syndrome diagnosis of the unborn child against a claim that the language was unconstitutionally vague. (The full Sixth Circuit is considering a similar Ohio law that would protect Down’s babies.) In Nebraska, a law prohibiting the later-term dismemberment procedure went into effect yesterday, with the state’s notorious late-term abortionist Leroy Carhart and abortion giant Planned Parenthood determining not to bring a legal challenge to it.
And yesterday, the full en banc Fifth Circuit Court of Appeals ruled that individual Planned Parenthood patients did not have legal authority under the Medicaid statute to challenge Texas’s decision to disqualify Planned Parenthood affiliates from its Medicaid program. The Fifth Circuit joined the Eighth Circuit, which had held similarly in a case out of Arkansas that the Medicaid statute’s requirement that states offer patients a “choice of qualified providers” did not grant patients a private right of action to sue in federal court for a determination that their preferred provider was wrongfully disqualified.
Yesterday’s decision sets up a clear and deep division between the federal appeals courts over the question, and virtually guarantees that the U.S. Supreme Court will have to resolve it soon despite declining to do so recently in cases out of Louisiana, Kansas, and South Carolina. The reasoning in the Texas decision closely paralleled the arguments that Americans United for Life made in an amicus brief supporting Texas, as well as other briefs we’ve filed supporting South Carolina, Louisiana and Kansas in the Supreme Court, urging the Court to review these cases and recognize the sovereign authority of states. We’re grateful that another federal appeals court has called out Planned Parenthood’s argument as an “emperor without clothes” and refused to permit the abortion industry to prop up its patients in federal court lawsuits that challenge state decisions to disqualify the abortion giant for unethical conduct.
In a concurring opinion, 5th Circuit Judge James Ho (joined by Judge Kyle Duncan) expressed a note of gratitude, just in time for Thanksgiving. Responding to a rather odd attack from dissenting Judge Dennis that charged the majority with failing to respect stare decisis (even though it’s usual and customary for an en banc court to overrule the decisions of single three-judge panels), Judge Ho offered this timely contemplation:
To be sure, people can and do react in different ways when others disagree with them. One option is to be offended. But another is to be thankful. Thankful that, as human beings, judges sometimes make mistakes, but strive to do better. Thankful that our Constitution not only tolerates disagreement, but celebrates it—because we believe in debate, the adversarial process, and issue percolation, both within and across the courts of appeals. Thankful that our legal system affords us the opportunity to make course corrections, because we all agree that it is more important to get the law right than to guard our self-esteem.
Here’s hoping that the U.S. Supreme Court will soon agree, and remedy its own recalcitrance on this issue. Until then, AUL remains thankful that we live in a resilient constitutional system that encourages robust debate – and points toward a day when wrong decisions may be righted.
