By Dave Andrusko
It sometimes takes a while, but eventually what pro-lifers have highlighted will get picked up by the “mainstream media.”
For example, we’ve posted a number of articles stemming from how Chief Justice John Roberts’ separate concurring opinion in the latest abortion case has been cited and interpreted by lower court justices addressing other dimensions of the abortion issue in Texas, Ohio, Indiana, Kentucky, and Oklahoma.
Among those laws was a ban on dismembering live unborn babies which is now on the books in thirteen states. Bans on such gruesome practices are a primary emphasis of National Right to Life and its state affiliates. Dismemberment abortions are every bit as brutal, as inhumane, and dehumanizes the abortionist every bit as much as partial-birth abortions, a ban on which the Supreme Court has upheld.
As you’ll recall, in supplying the crucial fifth vote, Justice Roberts agreed with the conclusion but not the reasoning in the June 29th June Medical Services, L.L.C. v. Russo decision. In that 5-4 decision, the Justices overturned the requirement that Louisiana abortionists have admitting privileges at a hospital within 30 miles of where they perform their abortions in case of emergency.
Almost going unnoticed, Justice Roberts wrote, according to CBS News reporter Kate Smith that
“states do not have to prove that the benefits of an abortion restriction outweigh the burden on a person’s ability to access the procedure— it just has to show that it does not present a ‘substantial’ obstacle or burden.”
Smith added another key quote from Roberts:
“Nothing about [previous Supreme Court precedent] suggested that a weighing of costs and benefits of an abortion regulation was a job for the courts.”
USA Today’s Richard Wolf today picked up on the continuing fallout from the June Medical Services, L.L.C. v. Russo decision in a post titled, “Supreme Court’s split decision for abortion rights gives opponents an unlikely boost.”
Wolf quotes pro-abortion sources who dispute how “a federal appeals court decision earlier this month reinstat[ed] several abortion restrictions in Arkansas, which was based in part on the Supreme Court’s seemingly pro-choice ruling.”
Although Wolf does not go into the appeals court panel’s decision itself in detail, its seven-page opinion is extremely worth reading.
The 8th circuit panel references a 1977 Supreme Court decision that held that when “no single rationale explaining the result [of a case] enjoys the assent of five Justices, ‘the holding of the Court may be viewed as that position taken by those Members who concurred in the judgments on the narrowest grounds’” (itself quoting from an earlier decision). In this case, it means the grounds on which Roberts struck down the Louisiana law.
Here is the key: “According to Chief Justice Roberts, the appropriate inquiry under the  Casey [decision] is whether the law poses ‘a substantial obstacle’ or ‘substantial burden, not whether benefits outweighed burdens” [“cost-benefit standard”]. Emphasis added.
Roberts wrote “[i]n this case, Casey’s requirement of finding a substantial obstacle before invalidating an abortion regulation is therefore a sufficient basis for [striking down the Louisiana admitting-privileges law], just as it was in Whole Woman’s Health,” the 2016 decision striking down a Texas law.
That having been established, the appeals court concluded
Here, the district court—without the benefit of Chief Justice Roberts’s separate opinion in June Medical—applied the Whole Woman’s Health cost-benefit standard to the challenged laws. In addition, the district court relied on Whole Woman’s Health’s “holding that the ‘statement that legislatures, and not courts, must resolve questions of medical uncertainty is . . . inconsistent with this Court’s case law.’’ Chief Justice Roberts, however, emphasized the “wide discretion” that courts must afford to legislatures in areas of medical uncertainty. [Internal citations omitted for clarity]
With that, the case was “remand[ed] for reconsideration in light of Chief Justice Roberts’s separate opinion in June Medical, which is controlling…”
Needless to say, Julie Rikelman, senior director at the Center for Reproductive Rights, is unhappy as is Jennifer Dalven, director of the American Civil Liberties Union’s reproductive freedom project, who told Wolf, “It would be a strange world indeed if a single justice could overrule a prior binding decision issued by a majority of the court.”
Actually, as the 8th Circuit panel explained, it’s not strange at all.
To his credit, Wolf quotes from two attorney generals who agree with the panel:
“The chief justice’s opinion controls, because it announces the only legal proposition on which a majority of justices voting for reversal agreed: substantially burdensome laws may be unconstitutional,” Ohio Attorney General Dave Yost told the U.S. Court of Appeals for the 6th Circuit. Ohio is seeking to stop abortions sought at least in part because of a Down syndrome diagnosis.
Similarly, Kentucky Attorney General Daniel Cameron urged the same appeals court to reconsider its decision striking down a ban on the second-trimester abortion method known as dilation & evacuation.
“Although (the Supreme Court ruling) has six different opinions, the reasoning of Chief Justice Roberts’s opinion governs because it has the only rationale on which the five justices who voted for reversal agreed,” Cameron’s office said.
Much more is coming. Stay tuned.