June 30, 2020

SCOTUS Abortion Ruling

“A divided Supreme Court on Monday struck down a Louisiana law regulating abortion clinics.” AP News

“Four years ago, by a vote of 5-3, the Supreme Court struck down a Texas law that (among other things) required doctors who perform abortions to have the right to admit patients at a nearby hospital. In that case, Justice Anthony Kennedy joined his four more liberal colleagues.. Kennedy is no longer on the court, but today it was Chief Justice John Roberts who joined the court’s four liberals in ruling in June Medical Services v. Russo that a similar law from Louisiana is unconstitutional…

“Roberts emphasized that he had disagreed with the majority’s decision to strike down the Texas admitting-privileges requirement in 2016 and still believed today that the Texas ‘case was wrongly decided.’ Despite that conviction, Roberts nonetheless agreed with Breyer that the Louisiana law ‘cannot stand’ because of a legal doctrine known as stare decisis – the idea that courts should generally not overrule their prior precedents.” SCOTUSblog

See our prior coverage of the case here. The Flip Side

See past issues

From the Left

The left supports the decision but worries that Roberts may vote against abortion rights in future cases.

The author of a recent study notes, “we found that emergency transfers following abortions were exceedingly rare. Among over 22,000 abortions over 200 combined months of observation, we found only four patients who had emergency transfers to a hospital: two occurred before and two occurred after clinicians had admitting privileges. In all cases, the admitting privileges of the abortion care provider had no bearing on patient outcomes…

“Our admitting privileges study confirmed decades of research showing that abortion care is extremely safe. After an exhaustive analysis of health claims data of over 55,000 patients over two years, we found that less than a quarter of 1% of all abortions result in a major complication… On Monday, the Supreme Court, the highest court in the land, followed scientific research and evidence when it comes to abortion in Louisiana."
Ushma Upadhyay, USA Today

“All these laws do — and the court has said this — is make it profoundly difficult to get an extremely safe and legal procedure. And that burden of difficulty falls hardest on those with the least means — poor women and women of color and those who live in rural areas… It’s appalling that nearly 50 years since the passage of Roe vs. Wade guaranteed a right to a safe, legal abortion — and after landmark Supreme Court cases in 1992 and 2016 reaffirmed that decision — women are still fighting to preserve their legal right to an abortion.”
Editorial Board, Los Angeles Times

“Roberts’s opinion harks back to Justice [Byron] White’s dissenting opinion in Roe v. Wade (1973) itself, which similarly argued that courts are not competent to weigh the difficult moral questions presented by the abortion debate. ‘In a sensitive area such as this, involving as it does issues over which reasonable men may easily and heatedly differ,’ White wrote in that dissent, courts should leave the question of abortion rights ‘with the people and to the political processes the people have devised to govern their affairs’… Roberts ultimately concludes that he cannot uphold a law that is nearly word-for-word identical to another law that the Court struck down four years ago. But his opinion is laden with hints that, in a future case, he is likely to vote to restrict — or even eliminate — the constitutional right to an abortion.”
Ian Millhiser, Vox

Americans are learning that there are at least two kinds of conservatism in the United States — and that, at least on some issues, Chief Justice John Roberts affirms one kind while his fellow Republican appointees to the high court affirm the other… Roberts' concurrence quotes none other than Edmund Burke, whose ideas about the fallibility of reason and the need for deference to tradition have played such an influential role in the development of conservative ideas…

“At the furthest pole from Roberts' Burkean restraint is the absolutist natural law theorizing of Clarence Thomas, whose fiery dissent in Russo makes clear what has been plain for many years — which is that Thomas sees little value in stare decisis at all. If he thinks a case was wrongly decided, he will vote to overturn it, no matter how long it has been the law of the land. Thomas is unwaveringly certain that he knows what the Constitution requires and permits, he thinks these standards are fixed for all time, and what matters for him is applying these standards correctly and stamping out the jurisprudential error wherever he finds it.”
Damon Linker, The Week

“Had Louisiana prevailed, the decision would have been greeted by screaming headlines reading ‘Supreme Court Restricts Abortion!’, and those new state TRAP [targeted regulation of abortion providers] laws would be enacted within days, if not hours. It would be seen, quite properly, as a backdoor way of outlawing abortion — and as Roberts is surely aware, around two-thirds of Americans oppose overturning Roe v. Wade. That would then cause an enormous backlash, at a moment when the Republican president already trails his Democratic opponent by around nine points in polls, a huge deficit…

Roberts has an ideology, but he is not an ideologue. He is an extremely savvy political operator, one who carefully sides with liberals when he determines that it is necessary to save the Republican Party from itself. Which is what he just did.”
Paul Waldman, Washington Post

The CEO of the Center for Reproductive Rights, one of the plaintiffs in the case, argues “This is a fight we shouldn’t have needed to wage at all. The Louisiana law at issue in the decision was identical to a Texas law we challenged, and which the Supreme Court struck down in 2016… This should be a pivotal and promising moment for reproductive rights. And yet, I have never been as concerned about the future of abortion access, which is being hollowed out by a game of constitutional whack-a-mole. It’s past time for Congress to step in and end it.”
Nancy Northup, Washington Post

From the Right

The right is critical of the decision and accuses Roberts of ruling based on political calculations.

The right is critical of the decision and accuses Roberts of ruling based on political calculations.

“Chief Justice John Roberts is one of the five justices who do not believe the [Louisiana] law conflicts with the Constitution… [Yet] The force of precedent, he maintains, requires the law to be nullified. Otherwise, Americans would lack confidence in the rule of law. It is, on the other hand, wonderfully inspiring to that confidence for a justice to strike down a law that he concedes the state had the constitutional authority to enact

“One can only speculate why Chief Justice Roberts has engaged in his contortions. Perhaps he believes that this decision will somehow strengthen the legitimacy of the Supreme Court as an institution above political strife. Instead, he has reinforced the impression, on all sides of our national debates, that he is the most politically calculating of the justices.”
The Editors, National Review

It is the court's job to uphold the Constitution, not its old cases… Why would Roberts vote to strike down a law that he believed, only four years ago, was constitutional? His claim to stare decisis proves unconvincing. If Roberts were right, the court should never have decided Brown v. Board of Education, which declared segregation unconstitutional, since it overruled Plessy v. Ferguson. Roberts himself voted just last year to overrule precedents related to the Takings Clause and two years ago against mandatory union dues…

“By trying to keep the court in a low-profile, moderate position, Roberts forgets that advancing popular programs remains the job of the president and Congress, whom the people elect for that purpose. The court’s role should remain that of enforcing the Constitution against popular wishes – otherwise, we could dispense with a Constitution and just let elections decide all.”
John Yoo, Fox News

“As Justice Gorsuch observed, the Louisiana law ‘tracks longstanding state laws governing physicians who perform relatively low-risk procedures like colonoscopies, Lasik eye surgeries, and steroid injections at ambulatory surgical centers.’…

“The Court in both Whole Woman’s Health and June Medical ruled that ‘unnecessary health regulations that have the purpose or effect of presenting a substantial obstacle to a woman seeking an abortion impose an undue burden on the right’ to an abortion. Yet what the Court defines as an ‘unnecessary’ requirement would be uncontroversially legal for any other medical procedure under the sun, and the ‘constitutional right’ itself is, of course, nowhere even vaguely mentioned in the actual Constitution.”
Dan McLaughlin, National Review

Moreover, “A woman’s right to abortion wasn’t at issue in June Medical Services v. Russo. No woman seeking an abortion was a plaintiff. The case was brought by abortion providers… The Court’s precedents require that a plaintiff have an injury due to the law or regulation at hand. The Court does not easily accept ‘third-party standing’ claims suing on someone else’s behalf… Yet the Chief blows past the Court’s ‘third-party’ standard when abortion is the issue

“On ObamaCare, he defined the insurance mandate as a tax. On the Census, he said the government’s logic was ‘pretextual.’ On immigration this month, he said an Obama order was illegal but he overturned President Trump’s repeal order on procedural grounds. Now he relies on an abortion precedent he dissented from by rewriting that precedent. All of these look like a Justice searching for a legal port, any port, to justify his rulings in a political storm.”
Editorial Board, Wall Street Journal

“When contentious social issues are at play, Roberts is now treating stare decisis as almost sacrosanct. For him, it’s a one-way ratchet: Prior court rulings of a purely economic or regulatory nature are fair game for overturning, but once the court has moved ‘leftward’ on an issue such as abortion or transgender issues, Roberts claims his hands are tied even if he thinks the court’s initial interpretation was wrong… Roberts for 10 years hasn’t really been doing the law; he’s doing what will keep the Supreme Court in good standing with semimoderate elements of the coastal elites.”
Quin Hillyer, Washington Examiner

Some note that “Polling by Gallup shows that the percentage of people identifying as pro-life has increased by 16 percentage points since 1995. Additionally, between 1991 and 2019, the number of abortion facilities has fallen by more than two-thirds, while the number of pregnancy help centers has steadily increased. Most importantly, data from both the Centers for Disease Control (CDC) and the Guttmacher Institute shows that the U.S. abortion rate has fallen by more than 50 percent since 1980…

“Pro-lifers should resist the temptation to give up on a long-sighted strategy that has resulted in real gains, or to lose sight of the extremely high stakes; rather we must redouble our efforts and continue to build a culture of life.”
Michael New, Townhall

A libertarian's take

“Setting aside the constitutional merits of the Louisiana law and how close it is to the Texas one that the Court invalidated four years ago, Chief Justice Roberts’s capricious application of stare decisis is startling. After all, stare decisis didn’t stop him from overturning precedent in Citizens United v. FEC (2010), Janus v. AFSCME (2018), and Knick v. Township of Scott (2019), cases in which the precedent was much older and more entrenched, but a very recent close decision in which he dissented apparently carries more weight…

“I’m not taking any position here on the merits of the Louisiana law at issue in June Medical, let alone on the viability of Casey and Roe v. Wade (1973), but I’m appalled by this latest example of the chief justice’s unprincipled decision making… John Roberts ought to stop playing ‘87‐​dimensional chess’ and just call the legal balls and strikes, as he promised to do at his confirmation hearings.”
Ilya Shapiro, Cato Institute

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