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The People of North Dakota vs. the Judges

By July 23, 2013North Dakota
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It is now evident that we have a situation in North Dakota where the judges stand squarely against the people when it comes to the issue of life. The people want women and the unborn protected from the predatory practices of abortionists, and yet judges are doing everything in their power to frustrate their every attempt.

The latest instance involved U.S. District Judge Daniel Hovland, who granted a temporary injunction to block the recently passed pro-life bill banning abortion after viability from taking effect on Aug. 1. His ruling, though, makes it clear that he has long ago made up his mind on the issue, so the preliminary injunction is just a formality. He wrote:

  • There is no question that (the North Dakota law) is in direct contradiction to a litany of United States Supreme Court cases addressing restraints on abortion. (It) is clearly an invalid and unconstitutional law based on the United States Supreme Court precedent in Roe v. Wade from 1973 … and the progeny of cases that have followed.

His deeply held personal view on the issue of abortion not only shows his bias, but also shows he does not know the precedent he cites as well as he thinks. In Roe, the Supreme Court established that, after viability, the State in promoting its interest in the potentiality of human life may, if it chooses, regulate, and even proscribe, abortion except where it is necessary, in appropriate medical judgment, for the preservation of the life or health of the mother.

Not to mention the fact that the Court acknowledged that “[i]f this suggestion of personhood is established, [Roe’s] case, of course, collapses, for the fetus’ right to life would then be guaranteed specifically by the [Fourteenth] Amendment.” It would be hard to argue against this point when the heartbeat is already present in a baby, but nevertheless, we need not even get to that. The Court said that the mother’s privacy right “cannot be said to be absolute.” “A State may properly assert important interests in safeguarding health, in maintaining medical standards, and in protecting potential life.”

This judge, as well as other progressives like him, have made the mother’s “privacy right” absolute. But this is not required. It has never been required. Not even under the illogical reasoning in Roe v. Wade.

Hovland is not alone on his crusade. Just a few days before his ruling, we got another injunction, a permanent one on that occasion, from East Central North Dakota Judge Wickham Corwin. His 58-page diatribe was almost comical in its tone and disdain towards the legislators who are interested in protecting women and the unborn. This case involved the regulation of abortifacients. Janne Myrdal, state director for CWA of North Dakota, released this statement in light of the ruling:

  • East Central North Dakota Judge Wickham Corwin’s decision comes as no surprise to those of us who fight for life in North Dakota. He had already said that he would rule in favor of the abortion clinic on its challenge – just one of his many improprieties along the way. We all know where he stands on the issue of abortion and his willingness to legislate from the bench on the issue. Corwin had called the legislation “simply wrongheaded” a long time ago – not “unconstitutional,” which is a legal term, but “wrongheaded,” which is language more appropriate for the legislature.

As evidenced by his overly broad, radical decision this week, it is clear he has strong feelings on this issue and has let those feelings dictate his rulings on this case. He should have recused himself from these cases from the beginning in order to let an impartial jurist handle these important cases for the sake of justice and fairness.

That is well said, for it illustrates the bigger problem we have with these progressive judges: their lack of judicial restraint, a restraint that made Alexander Hamilton refer to the judiciary as the least dangerous branch of government. He wrote in the Federalist #78: “The judiciary, from the nature of its functions, will always be the least dangerous to the political rights of the Constitution; because it will be least in a capacity to annoy or injure them.” Regrettably, Hamilton would find that what we have today would be unrecognizable to the America the Founders envisioned.