'Dear Sh*t-Fer-Brains': Supreme Court Justices' Sad-Mad Abortion Dissents!
SOMETHING GOOD HAPPENED AT THE SUPREME COURT! AND ABOUT ABORTION, NO LESS!
And yes, we're as shocked as you are.
Yesterday, the Supreme Court ruled on June Medical Services v. Russo, the latest abortion rights case to come down the pipeline. And, amazingly, John Roberts saved us again (for now).
Naturally, the forced birthers absolutely lost their shit. They don't vote Republican to get judges who care about the rule of law!
Everyone has heard of Roe v. Wade, the 1973 case that first recognized a woman's right to choose. But the test laid out in Roe, which was based on trimesters, is no longer the standard courts use to analyze abortion cases.
The test we use now was initially articulated in Planned Parenthood v. Casey, a 1992 case challenging a handful of restrictive Pennsylvania laws.
The test was updated in Whole Woman's Health v. Hellerstedt, the 2016 SCOTUS case that struck down a Texas law nearly identical to the Louisiana law at issue here.
The law at issue in this case was Louisiana's Act 620, a TRAP law designed to make it harder for pregnant people to access abortion care.
Ultimately, a plurality of the Court found that the Louisiana law was unconstitutional because it placed an undue burden on women seeking abortion care.
So here's what happened. The Court's four liberals all joined in the opinion. Chief Justice John Roberts voted with them to strike down the law but wrote a separate concurrence, leaving us with a plurality opinion rather than a majority opinion. That leaves the case on shaky ground as far as being used as precedent in the future, which isn't great. But the end result is still the same here: Louisiana's bullshit law is unconstitutional.
As the plurality noted, the Louisiana law at issue was "almost word-for-word identical to Texas' admitting-privileges law" that the Court struck down just four years ago. And the similarities don't end there!
As in Whole Woman's Health, the District Court found that the statute offers no significant health benefit. It found that conditions on admitting privileges common to hospitals throughout the State have made and will continue to make it impossible for abortion providers to obtain conforming privileges for reasons that have nothing to do with the State's asserted interests in promoting women's health and safety. And it found that this inability places a substantial obstacle in the path of women seeking an abortion. As in Whole Woman's Health, the substantial obstacle the Act imposes, and the absence of any health-related benefit, led the District Court to conclude that the law imposes an undue burden and is therefore unconstitutional.
Yeah, it's fucking ridiculous that this case even had to go up to SCOTUS. The statute at issue in Louisiana is nearly identical to the statute that was struck down in Texas. The results of the statute were basically the same: a huge decrease statewide in abortion providers, leading to severely reduced access. But the reactionary activist judges on the Fifth Circuit thought that was just fine. (Isn't it just adorable how conservatives love to project and rant about "liberal activist judges"?)
There was really no way for the Court to strike down the Louisiana law without reversing its own case from four years ago. And while SCOTUS is allowed to rule basically whatever way it wants, it would be pretty hard for the highest court in the country to maintain legitimacy while constantly reversing itself. That's why we have a little thing called stare decisis.
Stare decisis literally means, "Let the decision stand" and stands for the proposition that like cases should be treated alike. Precedent should be respected. And although John Roberts is totally fine ignoring stare decisis when it comes to things like voting rights, he at least cares about it more than his Republican colleagues.
(FYI, the doctors involved in this case proceeded under pseudonyms because we live in a shithole country that puts the lives of women's healthcare providers at risk, so when you see people referred to as "Doe 1," "Doe 2," etc., that's what that is about.)
The plurality opinion
The Court reiterated the standard for reviewing abortion cases that it set forth in Casey and Whole Woman's Health, namely that the state can't place an undue burden on women seeking to terminate a pregnancy. And if they're basing a law on the idea that it protects women's health, they have to present some evidence that it actually does.
Ultimately, the four justices in the plurality found that Louisiana's admitting privileges requirement "serves no relevant credentialing function." The doctors in the case each proved at trial that they couldn't get admitting privileges at hospitals for reasons that had absolutely nothing to do with competence or patient care.
To illustrate the devastating consequences if the law should go into effect, the Court even gave us some handy, dandy maps!
And Doe 3 testified at trial that he would stop performing abortions if he were the only provider left in the northern part of the state because of psychotic anti-choice terrorists. That "would leave Louisiana with just one clinic with one provider to serve the 10,000 women annually who seek abortions in the State." And
Working full time in New Orleans, [the last remaining doctor] would be able to absorb no more than about 30% of the annual demand for abortions in Louisiana. And because [that doctor] does not perform abortions beyond 18 weeks, women between 18 weeks and the state legal limit of 20 weeks would have little or no way to exercise their constitutional right to an abortion.
The reduction in abortion providers would also mean "longer waiting times, and increased crowding" plus
delays in obtaining an abortion increase the risk that a woman will experience complications from the procedure and may make it impossible for her to choose a noninvasive medication abortion.
Not to mention the fact that
The impact of those increases would be magnified by Louisiana's requirement that every woman undergo an ultrasound and receive mandatory counseling at least 24 hours before an abortion.
Oh and the part where, for example,
A Shreveport resident seeking an abortion who might previously have obtained care at one of that city's local clinics would either have to spend nearly 20 hours driving back and forth to Doe 5's clinic twice, or else find overnight lodging in New Orleans.
And of course,
the burdens of this increased travel would fall disproportionately on poor women, who are least able to absorb them.
Importantly, the court found that
the admitting-privileges requirement does not protect women's health, provides no significant health benefits, and makes no improvement to women's health compared to prior law.
And why did they come to that conclusion? Well,
As in Whole Woman's Health, the State introduced no evidence "showing that patients have better outcomes when their physicians have admitting privileges" or "of any instance in which an admitting privileges requirement would have helped even one woman obtain better treatment."
Did John Roberts save us?
Well, at the very least, he bought us some time. And honestly, that's more than I had dared to hope.
There are a lot of competing theories on why Roberts ruled the way he did and none of them have anything to do with wanting to protect the right to choose. Really, it could be any number of things: trying to ensure the Court's legitimacy; anger that the Fifth Circuit didn't follow the case SCOTUS just fucking handed down; a legitimate belief in stare decisis that is not shared by the rest of the
Republican stooges conservatives on the Court (unless, of course, it's about letting Black people vote); or throwing the majority of the country a bone before going full fascist in the Trump cases.
I guess we'll just have to wait and see! How fun!
Most of Roberts's concurrence focuses on stare decisis, which is"grounded in a basic humility that recognizes today's legal issues are often not so different from the questions of yesterday and that we are not the first ones to try to answer them." And ultimately, Roberts concluded
The legal doctrine of stare decisis requires us, absent special circumstances, to treat like cases alike. 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. [...]
Unfortunately, Roberts's concurrence makes it clear that he's still open to a challenge to Roe. Remember, Roberts dissented in Whole Woman's Health. The fifth vote in that case was Justice Kennedy, who has since been replaced by an accused attempted rapist who really likes beer.
Roberts explicitly says he still believes Whole Woman's Health was "wrongly decided." But, he says,
for precedent to mean anything, the doctrine must give way only to a rationale that goes beyond whether the case was decided correctly.
The scariest part of Roberts's concurrence comes when he implies that he might still be totally cool with just overturning Roe, Casey, and Whole Woman's Health.
Both Louisiana and the providers agree that the undue burden standard announced in Casey provides the appropriate framework to analyze Louisiana's law. Neither party has asked us to reassess the constitutional
validity of that standard.
Forced-birth extremists have already decided that Roberts is leaving the door open to upholding severe restrictions on choice in the future.
So ... yeah. It's not the best. But on the other hand, the bullshit law was struck down and this at least bought us — and women in Louisiana — some time
Four angry men
Justices Kegstand, Thomas, Alito, and Gorsuch all felt the need to write separate dissents setting forth their beliefs in government regulation of uteruses, because of course they did. They are cis white men, after all.
Justice Breyer's plurality opinion gives an excellent summary of Alito's dissent:
Without actually disputing any of the evidence we have discussed, JUSTICE ALITO maintains that the plaintiffs could have introduced still more evidence to support the District Court's determination.
For the Boomers on the Court, that's a pretty sick burn.
Alito thinks we should just wait and see how many pregnant people have their constitutional rights violated in the meantime! (No biggie.) As the majority points out, this is not a thing.
And despite decades of precedent allowing abortion providers to challenge abortion laws, Alito also argues that doctors don't have standing to challenge laws that criminalize what they do.
Creating new standing rules to keep people out of court is a favorite conservative trick. That way, they can get what they want while still claiming that they really have NO BIAS OR OPINION on the actual issues at stake.
If abortion providers can't sue to protect the rights of their patients, that would leave women and pregnant people with standing. But wait! There's absolutely no way for an abortion rights case to make it up to SCOTUS in time for someone to actually have an abortion. And you can bet that these same justices complaining about standing now would also happily say that a woman who has already had her baby or obtained an abortion elsewhere no longer has standing to sue.
And if no one can sue to stop shitty forced birth laws, then the forced birthers can get exactly what they want without even having to explicitly overturn Roe!
Yay implausible deniability!
Justice Sexual Harassment
Clarence Thomas gonna Clarence Thomas. And that's exactly what he does in his dissent, where he defends the Louisiana law and attacks the substantive due process rights found in Roe and its progeny.
Today a majority of the Court perpetuates its ill-founded abortion jurisprudence by enjoining a perfectly legitimate state law and doing so without jurisdiction.
Of course, the Court does, in fact, have jurisdiction. Although anti-choicers have been arguing since the 1980s that doctors don't have standing, SCOTUS has never accepted that argument. Meanwhile, the gross word "abortionist" appears 25 times in Thomas's dissent, I guess to show us how totally impartial and unbiased he is.
According to Thomas, the Court's previous abortion decisions
created the right to abortion out of whole cloth, without a shred of support from the Constitution's text. Our abortion precedents are grievously wrong and should be overruled.
And lest anyone think Thomas believes women and pregnant people have constitutional rights, he makes it emphatically clear that is not the case, talking about "the readily apparent illegitimacy of Roe" and writing that
Roe is grievously wrong for many reasons, but the most fundamental is that its core holding — that the Constitution protects a woman's right to abort her unborn child — finds no support in the text of the Fourteenth Amendment
And he doesn't stop there! Oh no. He doesn't think women or people who can get pregnant should have any reproductive rights! Thomas goes all the way back to Griswold v. Connecticut, a 1965 case that invalidated a Connecticut law that made ALL CONTRACEPTION illegal — even for married couples. Justice Thomas is apparently a fan of such laws, writing that the reasoning in Griswold "is as mystifying as it is baseless."
Justice Scalia Wannabe
Neil Gorsuch, who fancies himself the second coming of his Lord and Savior Antonin Scalia, tells us that the plurality decision is "a sign we have lost our way."
Why? Because he says so, obvi!
Gorsuch writes that the Court really should have accepted the absolutely bogus claims from the state of Louisiana that these bullshit TRAP laws have anything to do with women's safety. If the anti-woman extremists in Louisiana, who also want to ban all abortions, say so! And obviously, we should trust them.
As for Kegs Kavanaugh, he argues that, despite the mountain of evidence presented in this case, "additional factfinding is necessary to properly evaluate Louisiana's law." Because why wouldn't we let an unconstitutional law go into effect just to see how many people it harms?!
Somewhere in Maine, Susan Collins is concerned.
Collins, who's facing a tough reelection race this year, claims to support abortion rights while rubber stamping nearly every anti-choice extremist Trump throws at her. She claimed when she voted to confirm Kavanaugh that she "could not vote for a judge who had demonstrated hostility to Roe v Wade because it would indicate a lack of respect for precedent[,]" but she really, really trusted Kegs to respect precedent.
Collins even released a statement saying she agrees with the plurality opinion BUT ALSO still doesn't think PJ & Squee's BFF wants to overturn Roe.
New: Susan Collins says in statement she agrees with today's Supreme Court decision striking down Louisiana's abort… https://t.co/vtUOksXwtq— Igor Bobic (@Igor Bobic) 1593466117.0
And yes, we are talking about the same guy who has voted to curb abortion rights every time the issue has come up before the Court since his confirmation.
Collins's challenger, Maine House Speaker Sara Gideon, wasted no time reminding Mainers of Collins's vote for Kavanaugh and defense of it.
Do you still think Brett Kavanaugh believes Roe v. Wade is settled law, @SenSusanCollins? #MESen #mepolitics https://t.co/OiuWeVTWkd— Sara Gideon (@Sara Gideon) 1593443939.0
Suck an egg, Susan.
It's not all good, but we live to fight another day. And in 2020, that's really all we can ask for.
Here's the opinion, dissents and all:
Follow JLC on Twitter!
Got some spare cash hanging around? Why not help us pay the writers? We love you.