By Ed Mechmann
The latest tragedy from the Supreme Court has arrived. In the case of June Medical Services v. Russo, the Court struck down a common-sense regulation of abortion. This time, it was Louisiana’s health and safety rules that applied to abortionists. This is a cruel disappointment, not just because it continues the tragedy that began with Roe v. Wade. Rather, innumerable women and children will suffer from the abortions that the Court’s catastrophic errors will continue to permit.
Here are the lowlights of the decision:
- The plurality opinion was signed the “liberal bloc” of 4 justices – Breyer (author), Ginsburg, Kagen, Sotomayor. It was essentially a replay of the Whole Women’s Health v. Hellerstedt decision from 2016, despite significant differences between the fact patterns.
- The plurality evaluated the law by the balancing test that they invented in Whole Women’s Health. They conducted a detailed scrutiny of the law, ostensibly to determine the extent of the burden on women who experience a “substantial obstacle” in obtaining an abortion, weighed against the state interest in the regulations.
- This produced an extremely long opinion (40 pages). In essence, the plurality found that the regulations provided no significant benefit in preserving maternal health, and would impose an “undue burden” or “substantial obstacle” to a woman seeking an abortion.
- The details in the opinion really don’t matter. Forget about deferring to the legislature’s assessment of burdens and benefits, which is quintessentially the task of a legislature, not a court. This bloc of justices would never in a million years uphold any restriction on abortion. No matter how inventive states will be, this group of justices will always find that they constitute an “undue burden”. Their “analysis” represents what Justice Scalia once called the “ad hoc abortion nullification machine” – the tendency of some justices to come up with whatever rule and analysis they deem necessary to strike down laws.
- The most disappointing part of the decision was the concurrence by Chief Justice Roberts. He agreed with the plurality’s “undue burden” analysis. But he did so because he considered Whole Women’s Health to be the binding precedent and concluded that the statute in question here was virtually the same as in the earlier case.
- This is astonishing and deeply disturbing, because Chief Justice Roberts dissented in Whole Women’s Health and admitted in this opinion that he still believes that it was wrongly decided. Jut try to wrap your brain around that — he said, in effect, “I still think that case was wrongly decided, but I’m going to follow it anyway.”
- This bizarre adherence to such an iron-clad principle of stare decisis (the principle that once decisions are made they should not be lightly changed) is wholly unjustifiable either in principle or based on his prior actions in other cases. He has a long record of overturning precedents that he doesn’t like. His failure to do the same in this case is inexcusable.
- For good reason, the Chief has been accused of unprincipled, politically-driven decision-making. This is a particularly egregious example. It puts the definitive lie to his claim that he is a neutral umpire, just calling balls and strikes – as he claimed in his confirmation hearings. Good luck to any scholar who tries to identify a coherent jurisprudence in the morass of his record.
- It is especially infuriating that the Chief Justice misquoted the great conservative thinker Edmund Burke in support of his slavish devotion to stare decisis. The inaccuracy of the quote was pointed out by Justice Thomas, but it was still left in the Chief’s opinion. Perhaps he should read and carefully consider instead the words of the great American legal scholar, Chancellor James Kent: “If, however, any solemnly adjudged case can be shown to be in error, it is no doubt the right and the duty of the judges who have a similar case before them, to correct the error”.
- As always, Justice Thomas dissented and repeated that he considers Roe and its progeny to be entirely unjustifiable and that they should be repudiated. His opinion is always worth reading because of the clarity of his thinking.
- Justices Alito, Gorsuch and Kavanagh wrote separate dissenting opinions that would have upheld the law based on the Whole Women’s Health standards. None of them case doubt on the validity of Roe. None of them confronted the ultimate issue — should a civilized society based on the rule of law and inalienable rights permit the wholesale destruction of an entire class of human beings?
- There was a lot of quibbling in the six opinions over the technicalities of the Whole Women’s Health standard, and over the question of whether the doctors had standing to challenge the law. All that is basically irrelevant – this case stands for the proposition that the Supreme Court will still overturn virtually all abortion regulations and will invent or manipulate whatever standard it needs to do so.
- There is still only one Justice (Thomas) who is committed to overruling Casey and Roe. There is no way that the Chief Justice will do so. There is still no indication that the other three “conservatives” will do so, and I have never seen any evidence that they are prepared to do so (although there are some hints about Alito, if his past rhetoric about legislating from the bench can be relied on). We are still at least one vote short – at best.
There is no question that this is a major loss. After Chief Justice Roberts dissented from Whole Women’s Health, there was great hope that he would repudiate that case and vote to uphold the Louisiana law, and perhaps even support narrowing the amorphous Casey standard. That would have been a crucial step towards the eventual goal of overturning Roe. Once again, our hopes were utterly dashed.
It’s been a bad June so far in the Supreme Court. And there are still two major religious liberty cases to be decided. Please pray for wisdom for the justices of the Supreme Court.