AUSTIN, Texas – Earlier this week, a federal judged followed judicial precedent instead of the Constitution and struck down two sections of a Texas law restricting abortions.

U.S. District Judge Lee Yeakel struck down a provision in the Texas law that requires abortion doctors to have admitting privileges at a local hospital.

“The admitting-privileges provision of House Bill 2 does not bear a rational relationship to the legitimate right of the state in preserving and promoting fetal life or a woman’s health and, in any event, places a substantial obstacle in the path of a woman seeking an abortion of a nonviable fetus and is thus an undue burden to her,” he wrote.

Yeakel also barred a provision of the law mandating that doctors abide the Food and Drug Administration’s procedure for drugs in all cases, according to the Associated Press.

After scouring the enumerated powers in the Constitution, I found none authorizing a federal judge to determine health care policy in Texas. Of course, this makes no difference in modern jurisprudence. Judges don’t consider the Constitution. They simply follow each other around in a game of judicial follow the leader. The courts long ago abandoned the Constitution when it comes to abortion. In fact, the founding document delegates no power to the federal government to insert itself into the issue at all. The Supreme Court engaged in a masterful exhibition of judicial gymnastics and concocted a “constitutional right” to an abortion out of thin air in 1973. Since that time, courts appeal to that standard, not the Constitution.

Perhaps we should simply have judges swear to protect and defend judicial precedent instead of the Constitution when they take office.

James Madison explained the scope of federal authority in Federalist 45, describing federal powers as “few and defined.” He went on to explain that “all objects which, in the ordinary course of affairs, concern the lives, liberties and properties of the people,” would remain the province of the states and the people themselves. Is there any doubt that abortion fits into that category?

News reports indicate Texas Attorney General Greg Abbott will likely file an emergency appeal of Yeakel’s order to the 5th Circuit Court of Appeals in New Orleans,

North Carolina Tenth Amendment Center state chapter coordinator William Kennedy said he thought the state should simply ignore the unconstitutional ruling.

“I wish the governor and legislature would just say, ‘You can have your opinion, but you neither have the authority per the Constitution nor the power to enforce your opinion on the citizens of Texas and their duly elected representatives,'” he said. “Filing an emergency stay against the federal judges ‘ruling’ is not the action of a sovereign state.”


Mike Maharrey

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