By Dave Andrusko
On Monday, after plowing through the Supreme Court’s 5-4 decision in June Medical Services, L.L.C. v. Russo, I offered four takeaways from the thoughtful, fact-based dissents of Justices Clarence Thomas and Samuel Alito. Today, I’ll offer some additional thoughts based on the dissents of President Trump’s two appointees—Justice Neil Gorsuch and Justice Brett Kavanaugh.
Justices Thomas and Alito covered an enormous amount of ground, and I could only address some of their numerous insights and critiques.
Since Roe v. Wade “created the right to abortion out of whole cloth, without a shred of support from the Constitution’s text,” Thomas wrote, “Our abortion precedents are grievously wrong and should be overruled. Because we have neither jurisdiction nor constitutional authority to declare Louisiana’s duly enacted law unconstitutional, I respectfully dissent.”
Justice Alito proved beyond a shadow of a doubt that the abortionists’ tale of woe (how they had made attempts to secure admitting privileges in “good faith” but unsuccessfully) was not supported by the record. In truth, they had all the incentive in the world not to secure admitting privileges at a local hospital.
As he put it, “If these doctors had secured privileges, that would have tended to defeat the lawsuit. ”
Justice Alito quoted from particularly damning e-mails from “Doe 2” [one of the unnamed abortionists] who “only half-heartedly applied for privileges, did so on the advice of counsel, and calculated that an outright denial would be best for his legal challenge.”
All of this, and much more, illustrated how phony-baloney the assertions of “good faith” efforts actually were.
Those who believe in a judiciary that needs to practice self-restraint will quote Justice Gorsuch opening paragraphs for years to come:
The judicial power is constrained by an array of rules. Rules about the deference due the legislative process, the standing of the parties before us, the use of facial challenges to invalidate democratically enacted statutes, and the award of prospective relief. Still more rules seek to ensure that any legal tests judges may devise are capable of neutral and principled administration. Individually, these rules may seem prosaic. But, collectively, they help keep us in our constitutionally assigned lane, sure that we are in the business of saying what the law is, not what we wish it to be.
Today’s decision doesn’t just overlook one of these rules. It overlooks one after another. And it does so in a case touching on one of the most controversial topics in contemporary politics and law, exactly the context where this Court should be leaning most heavily on the rules of the judicial process. In truth, Roe v. Wade is not even at issue here. The real question we face concerns our willingness to follow the traditional constraints of the judicial process when a case touching on abortion enters the courtroom.
Of course to judicial activists, it is at best humorous, at worst heresy, to even consider that anything as prosaic as mere “rules” should “help keep us in our constitutionally assigned lane.” They feel free to roam into any lane, most particularly those occupied by state legislatures.
If they were to practice judicial restraint, they might have to say “what the law is, not what we wish it to be.” And where’s the fun in that? How can they remake society over in their own image if they are bound by separation of powers and the text of the Constitution?
“The real question we face,” Justice Gorsuch writes, “concerns our willingness to follow the traditional constraints of the judicial process when a case touching on abortion enters the courtroom.” Without using the phrase, this is the “Abortion Distortion” that the late Justice Antonin Scalia wrote about so tellingly. In its June decision the Court majority refused to apply the same rules of decision-making that it does in other cases.
Two other quick considerations from Justice Gorsuch’s dissent. First, in 2014 the Louisiana legislature was not singling out the Abortion Industry. Act 620 merely applied to them what already applied to everyone else.
In Act 620, Louisiana’s legislature found that requiring abortion providers to hold admitting privileges at a hospital within 30 miles of the clinic where they perform abortions would serve the public interest by protecting women’s health and safety. Those in today’s majority never bother to say so, but it turns out that Act 620’s admitting privileges requirement for abortion providers tracks longstanding state laws governing physicians who perform relatively low-risk procedures like colonoscopies, Lasik eye surgeries, and steroid injections at ambulatory surgical centers. In fact, the Louisiana legislature passed Act 620 only after extensive hearings at which experts detailed how the Act would promote safer abortion treatment—by providing “a more thorough evaluation mechanism of physician competency,” promoting “continuity of care” following abortion, enhancing inter-physician communication, and preventing patient abandonment.
Yes, to Lasik eye surgery, no to abortion. Figure that out.
Second, Justice Gorsuch talked about what a ‘static’ view the majority had of abortion business in Louisiana:
Today’s decision also appears to assume that, if Louisiana’s law took effect, not a single hospital would amend its rules to permit abortion providers easier access to admitting privileges; no clinic would choose to relocate closer to a hospital that offers admitting privileges rather than permanently close its doors; the prospect of significant unmet demand would not prompt a single Louisiana doctor with established admitting privileges to begin performing abortions; and unmet demand would not induce even one out-of-state abortion provider to relocate to Louisiana.
All these assumptions are open to question.
Everything about the majority opinion is “open to question.” Since the “Unsafe Abortion Protection Act” was never allowed to take effect, the impact, if it had, is sheer speculation. Speculation that just happened to track the protests of the Abortion Industry right down to the last jot and tittle.
Back in 2018, as Newsweek’s Jenni Fink explained Monday, “The Supreme Court temporarily blocked the law so it could review the case in 2019.”
Since the law hasn’t gone into effect, she wrote,
parties argue[d] their cases based on predictions of whether the doctors in question could obtain admitting privileges. In 2019, Kavanaugh wrote in a dissenting opinion that a 45-day transition period could resolve the question before the new law was applied and the “factual uncertainties presented in the stay application.”
Justice Kavanaugh essentially reiterated that point Monday in his dissent.
“As JUSTICE ALITO thoroughly and carefully explains, the factual record at this stage of plaintiffs’ facial, pre-enforcement challenge does not adequately demonstrate that the three relevant doctors (Does 2, 5, and 6) cannot obtain admitting privileges or, therefore, that any of the three Louisiana abortion clinics would close as a result of the admitting-privileges law. I expressed the same concern about the incomplete factual record more than a year ago during the stay proceedings, and the factual record has not changed since then. In short, I agree with JUSTICE ALITO that the Court should remand the case for a new trial and additional factfinding under the appropriate legal standards.”
Taken together, the four dissenters—Justices Thomas, Alito, Gorsuch, and Kavanaugh—respectfully but pointedly laid out the many and varied deficiencies of the majority’s argument, starting with the dangerously mistaken premise that the issues raised in June Medical Services, L.L.C. v. Russo had already been addressed and resolved in the 2016 Whole Woman’s Health v. Hellerstedt decision.
Justice Alito, tongue firmly planted in cheek, explained what the two decisions did have in common:
The majority bills today’s decision as a facsimile of Whole Woman’s Health v. Hellerstedt, and it’s true they have something in common. In both, the abortion right recognized in this Court’s decisions is used like a bulldozer to flatten legal rules that stand in the way.
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