The Pen

Rule of Law Need Not Apply, Bush Judge Rules Non-Doctors Right to Perform Abortions

Remember when judges had to take the abortion issue away from the legislatures so that women wouldn’t receive abortions performed with hangers in back alleys? Now, judges have to take the health care standards away from legislatures so that non-doctors can perform back alley-type abortions. The common denominator is that abortion is a religion where typical rules of law don’t apply, and judges are gods who can contradict law, the Constitution, and their own precedents at will.

On Monday, Virginia federal district Judge Henry E. Hudson, a George W. Bush appointee, ruledthat suddenly the commonwealth’s commonsense law dating back to 1975 requiring abortions to be performed only by licensed physicians is unconstitutional. You see, states and even the federal government can regulate every aspect of health care and even every aspect of medical insurance. But life-and-death procedures like abortions must be free from the most basic health care standards, including the requirement to have a doctor perform the procedure. Imagine a judge declaring that because gun ownership is a real right (unlike abortion), anyone could sell firearms without a license.

Once again, we see vividly how once the other branches of government have ceded every issue to the federal courts, everything goes when it comes to their preferred policy outcomes. Judges don’t even follow their own precedents. Once we grant judges the right to unilaterally make law, set morals, and remake culture, what is to stop them from changing the rules midway? In the landmark Planned Parenthood of Southeastern PA v. Caseyruling affirming the individual “right” to an abortion, the court made clear that states could still regulate the health care standards for performing abortions. “The Constitution gives the States broad latitude to decide that particular functions may be performed only by licensed professionals, even if an objective assessment might suggest that those same tasks could be performed by others,” wrote Justice O’Connor in the 1992 abortion case upholding a state’s ability to require that licensed physicians provide all relevant information in counseling on abortions.

Indeed, states regulate the standards for licensed professionals all the time – everything from lemonade stands to mowing grass – even when “an objective assessment might suggest that those same tasks could be performed by others.” But when it comes to the sacred ideals of abortion, all rules must be broken.

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[Editor’s Note: This article was written by Daniel Horowitz and originally published at the Conservative Review. Title changed by P&P.]