Something evidently troubled at least five of the Supreme Court justices about Azar v. Garza, the case involving a pregnant illegal immigrant who received an abortion thanks to the D.C. Circuit court. Even Justice Kennedy seemed trouble, because it bounced through an extraordinary 15 conferences before a terse decision emerged from the High Court.
This behind-the-scenes compromises in this opinion probably averted an even worse defeat defeat for the Left. Four Justices who typically side with Planned Parenthood and the ACLU joined the unanimous decision to overturn and vacate the D.C. Circuit opinion. This wipes from the books that appellate precedent for a right to abortion by illegal aliens.
If this decision merely stood alone, one might be reluctant to read too much into it. But it comes less than a week after a surprise denial of a petition for cert by Planned Parenthood to challenge a new pro-life law in Arkansas that is expected to cause some abortion clinics to close there.
There was no dissent from that denial of cert in Planned Parenthood v. Jegley, and the media was dismayed about how Planned Parenthood could lose before a Court that supposedly had five votes in its corner. The lack of a dissent suggests that the 5-4 majority on the Court for the pro-abortion side is in jeopardy or may no longer exist.
Any forthcoming retirements from the Court would give President Trump the opportunity to nominate a strong new Justice. But even without a retirement, this pair of decisions and the spectacle of 15 conferences to issue a unanimous decision against an abortion precedent suggests that something is afoot internally.
A majority of the Court may feel, as they should, that illegal aliens from pro-life countries do not have a constitutional right to abortion here. That means a majority on the High Court would give effect to the pro-life laws of South American countries. If Planned Parenthood and the ACLU lose on that issue, as they should, then it follows that they should lose on their similar arguments that demand invalidation of pro-life laws enacted by democratically elected legislators in our country.