CHICAGO – Chicago area-based attorney Clarke Forsythe wrote in the Washington Times Sunday that even before Justice Antonin Scalia's sudden death, messages sent by the Supreme Court indicate an urgent need for state lawmakers to amend their pro-life strategies.
After discussing recent cases in which even the most conservative Court members chose to remain silent rather than call for a hearing, Forsythe writes:
We now have clear and repeated evidence that there aren’t four justices on the Court — the minimum number needed to hear any case — who will hear a test case involving a limit on first-trimester abortions.
In addition, no justice filed a dissent from the Court’s refusal to hear these cases. Though individual justices can file dissents from the whole Court’s refusal to hear a case, no justice did that in either the North Dakota or Arkansas case.
His legal counsel on the topic of abortion legislation:
In the wake of the Court’s decision not to hear these cases, some states may still persist with legislation to prohibit first-trimester abortions in 2016-2017. However, they need to carefully weigh the obvious costs versus the possible benefits.
When the Supreme Court refuses to hear a lower court’s invalidation of a state statute, the law never goes into effect. The state has to pay the winning side’s attorneys’ fees, which may be hundreds of thousands of tax dollars, in addition to the costs and expenses expended by the state in defending the law.
Certainly, some legislators might consider such efforts educational for the public, but other legislation that might more readily go into effect can have a positive practical impact.
And Forsythe's suggested legislative strategy:
Instead of first trimester abortion prohibitions, state legislators could protect human life and women’s health with popular health and safety standards. In the run-up to the justices hearing the Texas clinic regulations case in March and their decision by the end of June (Whole Women’s Health v. Hellerstedt), public opposition to substandard providers and clinics could be important.
Forsythe, a resident in the Chicago suburbs, is senior counsel at Americans United for Life and the author of “Abuse of Discretion: The Inside Story of Roe v. Wade” (Encounter Books 2013).
His op-ed was first published February 21, 2016 in the Washington Times.
