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FLOWERS: In 2022, SCOTUS Righted a Grave Wrong

I generally hate year-in-review columns. They seem forced, like a list of things you must buy at the grocery store. Check this off, and then this, and we did this, and I need that, and we are out of this, and can we have extra of that, etc. Years blend into each other and it’s often hard to pick exceptional events, particularly since the same things seem to happen over and over again: Wars start and continue, and we think they end, and then they’re prolonged.

People die (surprise!) and we reflect on their lives, even when we might have forgotten they were still alive. Couples divorce and then find other partners they will eventually cast off in search of the perfect fit. Fads spring out of nowhere and insecure people with no particular talent film themselves on once-obscure social media apps in the hopes of boosting their self-esteem (after artificially boosting their lips and bosoms). Year after year, the same things tend to happen, and we try and frame them in a context where they seem historic.

But this year, something historic did happen, something that many people despaired of ever seeing, even though hope is the last thing to die. Since this is my column, this is my perspective. You won’t hear me talking about the tragic war in Ukraine, the January 6th Committee results, the disappointing red trickle at the mid-terms, the death of Sidney Poitier, or any of the other things that were indeed important (and about which I’ve written) but which did not stand out as the central, sea change event of 2022.

What defines for me the alpha and the omega of this year, the San Andreas Fault that splits two diametrically opposed tectonic plates, the BC and AD of our current historical timeline, is the Dobbs decision overturning Roe v. Wade.

That case, like Brown v. Board of Education, brought down a monolith of injustice: Legalized abortion by judicial fiat. The fiat was created by seven old men who ignored the voices of the American people and reached into some insubstantial and fictitious folds of constitutional jurisprudence to pluck out the right to kill a child.

Most would not be quite so blatant about it. They would replace “child” with “pregnancy” and “kill” with “terminate.” Those are the accepted terms in polite conversation, even though there is never anything polite about discussions around abortion. But the truth is clear and has been for almost 50 years.

January 22, 1973 would have marked one of the bloodiest half centuries known to modern society. That would have been the anniversary of the date Roe v. Wade, the decision to legalize abortion, was handed down and announced by that all-male court. I keep emphasizing the gender of the justices since we have been force-fed a diet of “if you can’t get pregnant, you have no right to have an opinion” by pro-choice advocates. I am going to be generous herein using the term that they prefer, pro “choice,” even though I would invite the reader to reflect on what “choice” we are discussing. There are only two: Life and death. Pro-choice advocates find both to be equally acceptable. Roe v. Wade supported that position and perpetuated a myth that there was virtue and legitimacy to the idea that women have dominion over their own bodies and the body growing within them.

But in 2022, after 50 years of lost potential and lives sacrificed to convenience and a skewed sense of autonomy, a court composed of men and women ruled that abortion was no longer a “right” and that, indeed, it never had been. And even though the reaction was brutal and there are continued attempts to codify abortion rights into law, and even though there are states where women will continue to be able to “choose” termination, there is now in this great country where immigrants find shelter and the oppressed find solace, an understanding that you cannot simply make up a right to do whatever you want, simply because you want to do it.

That principle transcends the issue of abortion. In 2022, women and men were told that no matter how much they want to engage in magical thinking and read the Constitution as a blueprint for living the lives they want, in the way they want, on the timeline they want, there are principles that are larger than their own narcissistic desires. One of them is the respect owed to other lives.

That is a lesson we should have figured out after the Civil War. It’s still a lesson we need to learn, and 2022 is bringing us closer to the point where we’re finally getting the message.

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PA Gubernatorial and Senate Candidates Weigh In on Leaked SCOTUS Opinion

Various Pennsylvania candidates for the U.S. Senate and governor responded to the pending Supreme Court decision overturning Roe v Wade leaked to the press Monday evening.

Adding to the mix, President Joe Biden also weighed in Tuesday, calling the right to an abortion “fundamental.”

Pennsylvania voters face a stark choice between the positions of the Republican candidates and those of the Democrats. Not surprisingly, Republicans staked out pro-life stances, and Democrats argued for a woman’s right to choose. Indeed, Democratic Attorney General Josh Shapiro, who is running for governor, has been airing ads touting his pledge to protect a woman’s right to an abortion. If elected, Shapiro promised to veto any anti-abortion bills that come to him from the legislature.

And if the leaked draft holds true, the states will have a larger role in determining abortion law. Here are comments from some of the Republicans who are running for governor:

“Once the repeal of Roe v. Wade is official, I am calling on the General Assembly to hold a vote on the Heartbeat Bill (that stops abortion once a baby’s heartbeat can be detected). The time is now for action to protect the rights of the unborn,” state Sen. Douglas Mastriano (R-Franklin) posted on Facebook.

Bill McSwain said via Twitter: “If true, this is, of course, the correct decision, both constitutionally and morally. But this leak is an outrageous attack on the court.”

Charlie Gerow told the Delaware Valley Journal, “I am praying that the leaked document is, in fact, the final decision of the court. It would allow the American people, through their elected representatives, to enact new laws protecting unborn children and honoring women. If Roe is overturned, our job will be to work with the legislature to build consensus and pass the strongest protections for unborn children and women.”

Lou Barletta said, “If this turns out to be accurate, it will be a long-awaited victory for unborn children. In the time since Roe v. Wade was handed down in 1973, tens of millions of babies have been killed, and all through the decades, the pro-life movement has fought to get to this point. If this draft ruling is indicative of the final majority opinion, it will save untold millions of innocent lives in the future. As I have made clear, I will not prejudge or predict what kinds of legislation may come before me, but I will be a pro-life governor, and I will sign pro-life legislation.”

And Dave White mentioned his disabled son, saying, “If (the) report is accurate, it is both a moment of joy and simultaneously one of great sadness. With joy for the millions of innocent lives that will now be spared, but with sorrow for the tens of millions who were never given a chance to laugh or to love. The loss to our society and our humanity that 50 years of Roe has stained our nation with will never be erased, but … I am encouraged that the Supreme Court appears prepared to overturn the injustice that was perpetrated through the Roe v. Wade decision.”

“Every day, I see the grace of God through the eyes of my son, Brian,” he added. “For 33 years, Brian’s life has been our family’s greatest blessing, and it is Brian’s love that drives me to be a better husband, a better father, and a better governor for all Pennsylvanians.”

White said he would be the best candidate to defeat “unabashedly pro-abortion Shapiro.”

And Montgomery County Commissioner Joe Gale said, “In this era of fake news, I pray that the revelation of Roe v. Wade’s reversal is true. Abortion is an atrocity and a stain on our nation. The United States Supreme Court’s 1973 decision legalizing the murder of the innocent unborn was not only unconstitutional but morally reprehensible. If and when Roe v. Wade is overturned and the issue of abortion is returned to the states, as the Republican governor of Pennsylvania I will fight to ensure every life in the womb is protected from the moment of conception.”

Sen. Pro Tempore Jake Corman said, “I am pro-life and have supported extending protections to the unborn since I first ran for office. While I will wait for the formal opinion rather than a leaked draft, you can rest assured that I will sign pro-life legislation that respects life and protects the innocent.  A Corman administration would move swiftly to work with the legislature to craft pro-life legislation that accomplishes these goals.”

Some Senate candidates also commented.

“The court is right. Roe was wrongly decided. Abortion laws should be left up to the American people and their elected representatives. I look forward to supporting pro-life legislation that saves innocent lives in the U.S. Senate,” said Dr. Mehmet Oz, a Republican.

Republican Dave McCormick called the leak, “What an earth-shattering breach of trust that is further evidence of an assault on our institutions.” If the high court overturns Roe v. Wade, he said, “This would be a huge step forward and a huge victory for the protection of life…This is an issue on the campaign trail. It’s already been a flashpoint,” adding that he is pro-life.

“If you’ve heard my story, you know how grateful I am for the decision my grandparents made to support my very young mother and allow me to live rather than be aborted,” said GOP candidate Kathy Barnette. “My life matters. All lives matter and I value all life, from conception until natural death,” Barnette said. “Every one of us was created with a purpose and I am greatly encouraged to see that our nation is prepared to engage in the long-overdue discussion about when life begins and when constitutional protections come full force.”

However, she decried the leak and said those responsible must be “held accountable.”

And Republican Jeff Bartos said in a tweet: “If this is authentic, the Supreme Court and the DOJ must investigate this leak immediately and hold the responsible person(s) accountable. Roe was wrongly decided. The court now has the opportunity to follow the constitution and allow the states to protect the unborn.”

Former Ambassador Carla Sands said, “If Roe v. Wade is overturned, the American people and their elected representatives could then enact measures to uphold and protect the sanctity of all human life. This development underscores the need to elect a U.S. Senator who is truly and unequivocally pro-life. In the U.S. Senate, I would vote in favor of sensible legislation with the goal of saving unborn human lives.”

As for the Democrats running for Senate, state Rep. Malcolm Kenyatta tweeted, “Just last week I stood up in the face of fierce opposition and defended the need to expand the court and begin the hard process of rebuilding public trust in this critical institution.”

In a statement, Kenyatta added, “This is a sad day for our nation. Make no mistake, we arrived at this moment because Mitch McConnell shamelessly packed the Supreme Court with radical right-wing extremists. That is why, as your next senator from the Commonwealth of Pennsylvania, I will fight to expand the Supreme Court to reflect the will of the people and to restore the balance of justice in America. And as we figure out how to navigate this painful moment I encourage everyone to be gentle with themselves. I know how deeply held the right to choose is for each of us, especially to the women leading my team. On the debate stage last week, I stood in the face of fierce opposition from my primary opponents on the matter of restoring balance to the Supreme Court and I will proudly do the same as your nominee and as your senator.”

John Fetterman said in two tweets: “Let’s be clear: The right to an abortion is sacred. Democrats have to act quickly – get rid of the filibuster to pass the Women’s Health Protection Act + finally codify Roe into law. We cannot afford to wait.” And, “We cannot afford to wait. Send me to Washington, and I’ll be that 51st vote to codify abortion rights into law.”

Also on Twitter, Congressman Conor Lamb said, “If Dems lose in PA, Congress may never save Roe. Poor women will suffer most. I voted to put Roe into law, I’m endorsed by @NationalNOW, & I’ve voted 100% pro-choice while winning in GOP districts. That’s my record. If I’m your nominee I’ll give you the campaign you deserve.”

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Cosby Remains Free as U.S. Supreme Court Declines To Hear Montco DA’s Appeal

Comedian Bill Cosby gets the last laugh.

The U.S. Supreme Court rejected an appeal by Montgomery County District Attorney Kevin Steele to reopen the criminal case against the 84-year-old former TV star. That upholds a decision last year by Pennsylvania’s Supreme Court overturning Cosby’s conviction on indecent assault charges that led to his release from prison. Scores of other women also claimed they were assaulted by the entertainer.

The state Supreme Court held in June 2021 that Cosby should never have been tried in the case because a previous prosecutor (Bruce L. Castor, Jr.) sanctioned a “non-prosecution agreement” with the actor. “In light of these circumstances, the subsequent decision by successor D.A.s to prosecute Cosby violated Cosby’s due process rights.”

The Elkins Park resident was tried twice for his 2004 aggravated indecent assault against then-Temple University employee Andrea Constand. According to testimony, Cosby drugged Constand at his home before the assault. A judge subsequently sentenced him to three to 10 years in prison. He spent just over two years behind bars.

Asked to comment on the Supreme Court declining to hear the appeal, Castor was succinct.

“How does Cosby recover the years of freedom taken from him by Kevin Steele?” he asked.

Steele defended his actions. “Petitioning the U.S. Supreme Court for review was the right thing to do. But obviously, there was only a small chance the high court would be able to hear the case. We appreciate the court’s consideration. My appreciation also goes to Andrea Constand. All crime victims deserve to be heard, treated with respect, and supported through their day in court. I wish her the best as she moves forward in her life,” Steele said.

Whether or not to prosecute Cosby was a campaign issue in the 2015 district attorney’s race that pitted Democrat Steele against Castor, a Republican, a former district attorney and a former county commissioner.

Cosby’s spokesman issued this response:

“On behalf of Mr. and Mrs. Cosby and the Cosby family, we would like to offer our sincere gratitude to the justices of the United States Supreme Court for following the rules of law and protecting the Constitutional Rights of all American citizens of these United States,” said Andrew V. Wyatt, a spokesman for Cosby. “Mr. Cosby’s Constitutional Rights were a ‘reprehensible bait and switch’ by Kevin Steele, Judge Steve T. O’Neill, and their cohorts. This is truly a victory for Mr. Cosby but it shows that cheating will never get you far in life and the corruption that lies within Montgomery County District’s Attorney Office has been brought to the center stage of the world.”

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Pennsylvanians React to Supreme Court Vaccine Mandate Ruling

In a 6-3 ruling Thursday, the U.S. Supreme Court struck down President Joe Biden’s OSHA vaccine mandate on businesses with more than 100 employees.

However, the high court permitted the vaccine rule to be imposed on healthcare workers at institutions that receive Medicare or Medicaid funding, unless those employees have medical or religious exemptions.

OSHA issued its mandate in November, parts of which– including a mask mandate for unvaccinated workers — were scheduled to take effect this week.

In response, 27 states have sued the Biden administration in various venues over its attempts to use the Occupational Safety and Hazard Administration (OSHA) to impose mandates on employers with 100 or more workers. The mandates, which required employees to either be vaccinated or undergo regular testing, would have affected 84 million workers.

Biden’s Chief of Staff Ron Klain re-tweeted a statement calling the OSHA rule “the ultimate workaround for the federal government to require vaccination,” a point noted by the court during its oral arguments last week. Klain’s attitude fed suspicions among some legal observers that the White House’s decision to issue the OSHA order is just the latest example of the Biden administration issuing a policy they know is unlikely to survive legal scrutiny for the sake of political messaging.

For example, when Biden issued a federal moratorium on evictions last August, he admitted, “The bulk of the constitutional scholars say it’s not likely to pass constitutional muster.” The Supreme Court swiftly struck it down.

It only took a week for the Supreme Court to do the same with the OSHA mandate, once it reached the high court. “Under the law as it stands today, that power [to regulate the pandemic] rests with the states and Congress, not OSHA,” Justice Neil Gorsuch said Thursday.

“By blocking the OSHA mandate, the Supreme Court showed that it’s possible to take statutory limits on federal power seriously, not just constitutional ones,” said Ilya Shapiro, director of the Robert A. Levy Center for Constitutional Studies at the Cato Institute. “After all, even if we accept federal regulation of workplace safety as constitutional, there’s a difference between occupational risk and the general risk of living in a pandemic.”

Some local businesses chafed under the mandate, while others supported it.

“The Pennsylvania Chamber fully supports vaccination to curb the pandemic,” said Chamber president and CEO Gene Barr. “However, we heard many concerns from employers in response to the ETS – both confusion over implementation and with losing employees during a workforce crisis. We urge lawmakers to work with the business community as partners helping employers get through both the pandemic and workforce crises.”

Sen. Pat Toomey (R-Pa.) said, “The Supreme Court’s decision to block the administration’s private employer testing and vaccine requirement is a welcome enforcement of the constitutional limits of the powers of the executive branch. I continue to believe the vaccine is the best choice for most Americans, and I hope those who are able but have not received a vaccine will do so soon. The Biden administration lacked the legal authority to coerce vaccination through employers. This unlawful and unconstitutional exercise fueled vaccine skepticism and led to employees leaving the workplace, exacerbating current staffing shortages for businesses.”

Congressman Brian Fitzpatrick (R-Bucks) holds similar views.

“Over the past few months, I have heard from countless constituents across our community who have expressed concern over the Biden administration’s vaccine mandate on private businesses,” said Fitzpatrick. “While I have been a proponent of COVID-19 vaccines since they became available, I believe receiving a vaccine should be a decision left up to individuals. I oppose the federal vaccine mandate and cosponsored H.J. Res. 65, a resolution expressing disapproval of OSHA’s vaccine mandate for private businesses with more than 100 employees.”

Fitzpatrick added, “I support the Supreme Court’s decision to block enforcement of this draconian mandate. Since the onset of the pandemic, our businesses have faced months of massive revenue losses, supply chain issues, workforce shortages, and skyrocketing costs. The overreaching OSHA standard will only add strain on our businesses and will further discourage people from entering back into the workforce, impeding Pennsylvania’s economic recovery. I have always believed that it was not in the best interest of the Commonwealth to implement or enforce OSHA’s vaccine mandate, and I will continue to stand with my colleagues against this misguided measure.”

Meanwhile, two doctors who hope to replace Toomey when he retires had opposing points of view.

Republican Dr. Mehmet Oz said on Twitter, “Joe Biden’s attempt to dictate a decision that should be made between a patient and their doctor was always unconstitutional. I will always stand against mandates that take the power away from patients.”

However, Dr. Kevin Baumlin, a Philadelphia ER doctor and Democrat, told the Delaware Valley Journal he supports vaccine mandates as a way to stop the virus by encouraging more people to get COVID-19 shots.

“I think it’s a bad day for public health and health policy,” said Baumlin. As for Biden’s mandate, “I think the intentions were good. We don’t want vaccine mandates because we want to hurt people. We want to keep people safe. This is a particularly contagious variant. It spreads easily. Therefore, the attempt to impose mandates in the workplace is to decrease illness, death and dying.”

 

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Montgomery County D.A. Appeals Cosby Case to U.S. Supreme Court

Depending on what the U.S. Supreme Court decides, Bill Cosby’s taste of freedom may be brief.

On Monday, Montgomery County D.A. Kevin Steele announced he is asking it to review the Pennsylvania Supreme Court’s decision to overturn the famous comedian and actor’s conviction.

“Petitioning to ask the High Court to review was the right thing to do because of the precedent set in this case by the majority opinion of the Pennsylvania Supreme Court that prosecutors’ statements in press releases now seemingly create immunity,” said Steele in a press release. “This decision as it stands will have far-reaching negative consequences beyond Montgomery County and Pennsylvania. The U.S. Supreme Court can right what we believe is a grievous wrong.”

Some 60 women have accused the octogenarian of sexually assaulting them over the years. In 2017, a Montgomery County jury found him guilty of charges related to his treatment of then-Temple University employee Andrea Constand. She claimed Cosby drugged and assaulted her in his Elkins Park mansion in 2004. A judge subsequently sentenced him to three to 10 years in prison. He spent just over two years behind bars.

The state Supreme Court held in June that Cosby should never have been tried in the case because a previous prosecutor (Bruce L. Castor Jr.) sanctioned a “non-prosecution agreement” with the actor. “In light of these circumstances, the subsequent decision by successor D. A.s to prosecute Cosby violated Cosby’s due process rights.”

Cosby was promptly released and was soon back at his home, flashing reporters the victory sign.

Asked to comment, Andrew Wyatt, a spokesman for Cosby said, “Unwilling to accept (his) epic loss in the Pennsylvania Supreme Court, the Montgomery County District Attorney has now filed a Petition for a Writ of Certiorari to the United States Supreme Court. In short, the Montgomery County D.A. asks the United States Supreme Court to throw the Constitution out the window, as it did, to satisfy the #metoo mob.

“There is no merit to the DA’s request which centers on the unique facts of the Cosby case and has no impact on important federal questions of law,” said Wyatt. “The United States Supreme Court does not typically interfere with the rulings of a State’s high court unless it conflicts with the decisions of other state high courts or our federal court of appeals. This is a pathetic last-ditch effort that will not prevail. The Montgomery County’s DA’s fixation with Mr. Cosby is troubling, to say the least.”

But Steele contends the Cosby case opened the door for future plaintiffs to argue they may not be prosecuted based on a prosecutor’s press release, even if new evidence is found.

“This Court, not the Pennsylvania Supreme Court, should be the one to decide whether Cosby’s drastic expansion of (a previous case) is appropriate and whether its dramatic shift in law about prosecutorial statements should continue through our court systems,” said Steele in his pleading to the high court. “The issue is important because other courts have rejected the idea that press releases are bilateral agreements or issued as anything more than an administrative task. Under Cosby’s rationale, the accused in those cases now have transactional immunity, regardless of any potentially new evidence coming to light and regardless of whether the accused’s reliance on the statements was reasonable.”

Steele told the high court “Cosby is a dangerous precedent. A prosecution announcement not to file charges should not trigger due process protections against future criminal proceedings because circumstances could change, including new incriminating statements by the accused. The Pennsylvania Supreme Court held that due process makes detrimental reliance on a decision not to prosecute constitutionally enforceable, regardless of reasonableness. Detrimental reliance, according to that court, transforms a mere decision not to prosecute, or even the absence of a decision to prosecute, into a promise of non-prosecution with a constitutional guarantee. A suspect need only rely to his detriment to ratify his immunity to future prosecution. That is quite an attractive proposition, not only to celebrities like Cosby, but to all manner of garden-variety litigants.”

Castor declined to comment. It is unclear whether the U.S. Supreme Court will agree to hear Montgomery County’s appeal.

 

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