One Man’s Supreme Court The Chief Justice relies on an abortion precedent he dissented from.
https://www.wsj.com/articles/one-mans-supreme-court-11593472794?mod=opinion_lead_pos1
So much for all those crocodile fears about the end of abortion rights. The Supreme Court ruled 5-4 Monday that a state can’t even require abortion providers to have admitting privileges at a hospital. And the logic of the concurring opinion from Chief Justice John Roberts, who provided the fifth vote, suggests not even de minimis regulation of abortion will survive his Court’s scrutiny.
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, who claimed that Louisiana’s requirement that they have admitting privileges at a hospital would be an undue burden on the ability of women to obtain an abortion.
Here’s the stunner: Four years ago a different Court majority overturned a similar Texas statute, with then Justice Anthony Kennedy joining the four liberals. Chief Justice Roberts dissented in that case. Yet on Monday the Chief joined the liberals, citing his duty to follow precedent.
“The legal doctrine of stare decisis requires us, absent special circumstances, to treat like cases alike,” writes the Chief. “The Louisiana law imposes a burden on access to abortion just as severe as that imposed by the Texas law, for the same reasons. Therefore Louisiana’s law cannot stand under our precedents.”
Except it isn’t that simple, as the four dissenters point out. When the Chief dissented in that Texas case, Whole Woman’s Health, the majority used a balancing test he rejected. The Chief writes in Russo that he still rejects that balancing test. But this time his explanation is that the Louisiana law is an undue burden on abortion under the Court’s Casey precedent.
In other words, the case he relies on as a precedent that he says can’t be broken was wrongly decided. But the Chief has come up with another legal justification for getting to the result the liberals want. Have precedent, will travel. Any one will do.
As the dissenters point out, the Chief also ignores the Court’s recent precedents on standing law, or the ability to show harm. 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.
In this case, the abortion providers aren’t hurt because there is no constitutional right to perform an abortion and Louisiana requires admitting privileges for many other medical procedures (Lasik eye surgery, etc.) in case something goes wrong. As Justice Neil Gorsuch points out in his stinging dissent, at least one major hospital in Louisiana eased its admitting rules for abortion providers after the law passed. Yet the Chief blows past the Court’s “third-party” standard when abortion is the issue.
The implications for abortion law seem clear enough. No challenge to the Court’s abortion precedents will succeed with the nine current Justices. Democrats and the left will continue to blow smoke about the imminent demise of Roe v. Wade, as Joe Biden did Monday. But even incremental regulation that tinkers around the edges of abortion law may fail.
We said Roe v. Wade was safe during the confirmation fight over Justice Brett Kavanaugh, and many on the left and right sneered. Sorry, folks, were you watching the Chief? These columns going back decades have supported abortion rights, within boundaries, but it is a political question to be decided democratically. Roe has poisoned so much of American political life, and politicized the judiciary in the process, by removing abortion from legislative debate.
Russo continues a dismaying string of rulings by the Chief Justice—less due to their result than their reasoning. He seems to think he has to protect the Court from Democratic threats to undermine its legitimacy. But in the process he is resorting to logic that looks designed to achieve political results.
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. This will further draw the Court into politics and do even more long-term harm to the judiciary.
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