Stare decisis rules! John Roberts again votes with the liberals, nullifying Louisiana’s restrictive abortion law

June 29, 2020 • 10:00 am

According to CNN and the New York Times, John Roberts has once again joined the Supreme Court’s four liberals to produce a fantastic 5-4 decision, this time overturning a restrictive abortion law in Louisiana that would have effectively blocked nearly all abortions in the state, limiting the number of doctors in Louisiana who could provide abortions to ONE.

According to the NYT, here are the details of the law:

The case was the court’s first on abortion since President Trump’s appointments of two justices shifted the court to the right.

The Louisiana law, which was enacted in 2014, requires doctors performing abortions to have admitting privileges at nearby hospitals.

The law’s supporters said the law protects the health and safety of women seeking abortions, and that the requirements for obtaining admitting privileges helps ensure the competence of doctors. Opponents disputed that, saying that hospitalizations after abortions are rare, that women would receive medical care at hospitals whether their doctors had admitting privileges or not and that abortion providers are often unable to obtain admitting privileges for reasons unrelated to their competence.

Only two of the five doctors who provide abortions in Louisiana have obtained admitting privileges, one in New Orleans and one in Shreveport. But the Shreveport doctor testified that he could not handle the clinic’s work alone. If the law went into effect, a trial judge concluded, there would be a single doctor in a single clinic, in New Orleans, available to provide abortions in Louisiana.

The Court’s opinion, penned by Stephen Breyer, can be found here.

Roberts is mellowing with time and shedding his conservatism, for in 2016 he joined the losing conservative minority in another restrictive-abortion case, this time involving a Texas law.

Thank Ceiling Cat that Trump can’t make the final decision about what is American law!

34 thoughts on “Stare decisis rules! John Roberts again votes with the liberals, nullifying Louisiana’s restrictive abortion law

  1. I’ve always been a little skeptical of the stare decisis principle, since it can allow massive injustice when times change and the “moral arc” has bent in the right way but the system hasn’t caught up. On the other hand, having the Court change its collective views every time it changes composition would be bad (never mind more frequently) – that would grossly politicize it even more. So I would want other principles to play with; I am not sure what I would want them to be. (Maybe allow changing if some magic time has elapsed *and* the Court has changed composition completely?)

    1. Isn’t stare decisis simply what the court says when they don’t think the moral arc has bent far enough to change their opinion on the issue? In this case, they thought that the Louisiana case was not substantially different than the Texas case they had decided only a few years ago. Of course I am not legal expert.

  2. My very brief scan of the various rulings is this:

    Breyer, Gingsburg, Sotomayor, Kagan – agree with plaintiffs that new laws would be ‘substantial burden’ and ‘undue burden.’

    Roberts (separately) – emphasizes Stare Decisis and that the LA law was nearly identical to the early TX law, which was found to violate Casey’s notion of ‘undue burden.’

    Alito, Goresuch, Thomas, Kavanaugh – this one was all over the place. First, they said the plaintiff lacks standing. They agreed with LA that requiring admitting privileges is a health issue, and said that a requirement for abortion doctors is not a limitation on women or women’s access. Then, with no irony, they said the TX case was completely different because it was decided after the admitting privileges requirement was put in place and found to have a negative impact on women’s access.

    Thomas (separately) – Roe is illegitimate, there is no constitutional right to abortion.

    Kavanaugh (separately) – hid behind a technicality. Said he doesn’t like pre-enforcement challenges and would have allowed the rule to go into effect, then heard challenges from plaintiffs if it really turned out to reduce the number of available doctors.

    Gorsuch (separately) – we should defer to LA legislature as to benefits of this law. Plaintiff lacks standing. The plurality is speculating as to the impact of the rules. The plurality is applying too low a standard of ‘burden.’

    1. Sounds like Kavanaugh and Gorsuch do look at data and that’s a good sign (at least that is their claim).

      I think if data showed them conclusively that this law restricts people’s rights and puts people’s lives at risk they would vote against restrictive abortion laws.

      Thomas’ reason is simply benighted….a dead rock whose brain has malfunctioned.

      1. I’m a bit of a cynic. As I said to Ken below, I think Roberts, Alito, Kavanaugh, and Gorsuch are hiding their pre-made opinions pro-Roe and con-Roe behind a lot of technical legal stuff. I think all four of their patterns on abortion ruling will be just as consistent as the Justices I haven’t mentioned, who are more up front about supporting or wanting to eliminate the constitutional right to an abortion.

  3. Chief Justice Roberts’s vote in this case reminds me of one of the two highly principled conservatives that Dwight Eisenhower appointed to SCOTUS, Potter Stewart (the other being the second John Harlan. Ike also made two other SCOTUS appointments — Chief Justice Earl Warren and associate justice William Brennan — but those two, to Ike’s dismay, turned out to be die-hard liberals.)

    Stewart was a relative liberal on free-speech issues (probably best remembered for his comment on obscenity that “I know it when I see it”), but an abiding social conservative. As such he was frequently on the losing end of Warren Court decisions. Stewart remained on the Court after it swung hard right with Richard Nixon’s appointment of Chief Justice Warren Burger to replace the retiring Earl Warren and after Nixon got to make three additional conservative SCOTUS appointments in his first term.

    In those days, Potter Stewart hewed to a hard and fast rule: He would refuse to supply the fifth vote needed to overrule a liberal Warren Court precedent, even as to cases in which he had written a stinging dissent to the original decision. Stewart believed this stand necessary to uphold the Court’s integrity and to avoid the appearance that the Court’s constitutional interpretation hinged on nothing more than a change in the Court’s personnel. Chief Justice Roberts is showing signs of being cut from the same cloth.

    The other salient point about today’s June Medical Services decision is that, despite this case presenting issues virtually indistinguishable from those presented by Texas abortion restrictions struck down in the Court’s 2016 decision in Whole Woman’s Health v. Hellerstedt, Justice Brett Kavanaugh voted with the three other doctrinaire conservatives to uphold the Louisiana statute — meaning that all those sweet nothings about his great respect for stare decisis as it pertains to reproductive rights that Kavanagh boofed into the ear of the ditzy soon-to-be-former US senator from Maine, Susan Collins, during their private meetings to convince her to cast the crucial vote to confirm his nomination, weren’t worth the hot air on which they wafted Collins’s way.

    1. Hey Ken, from a bottom feed….er…I mean lawyer’s perspective*, can you comment on Keith Douglas’ point above about stare decisis? It carries a great deal of weight for people with funny robes. Seriously, I can see the value of resisting whipsaw kinds of changes in legal decisions, but it seems a thin support for such an important legal concept. If you’ve the time, could you expand (or expound, however you see fit)?

      *grumble. I hates emoticons, but… 🙂

      1. Stare decisis is simply the legal principle that matters previously decided should remain so, that there should be consistency in the interpretation and application of the law. It binds lower courts to follow higher-court decisions, and requires in most instances that courts follow their own earlier decisions.

        The way the principle plays out in Supreme Court cases interpreting the US constitution is particularly delicate, since there is no higher court, and since (unlike in cases involving statutory interpretation) congress is powerless to overrule or modify the decision. SCOTUS generally follows its own earlier decisions, but has the power to change course, though it does so very cautiously.

        Among the factors that generally go into the consideration whether to do so are: How long has the precedent stood? How many times has it been affirmed in the intervening years? What was the vote of the justices in the original case? (Was it unanimous, for instance, or 5-4 over a strong dissent?) Has there been intervening scholarship on the underlying constitutional provision suggesting that it was misinterpreted by the Court? Has application of the earlier decision caused confusion in the lower courts? Have citizens come to rely on the original decision in ordering their affairs such that overruling it would throw society into disarray? Or have policy considerations or society itself changed so much in the intervening years that a change in direction is warranted?

        The paradigmatic instance of SCOTUS abandoning precedent was probably the 1954 school-desegregation case, Brown v. Board of Education, in which the Court overruled the separate-but-equal doctrine it had established in the 1896 case Plessy v. Ferguson.

        You can find a decent primer on stare decisis here.

        1. Thank you, that is helpful. I think too that when overturning a decision, the decision to overturn should be strong. In Brown the justices voted unanimously to overturn Plessy. In this case, had Roberts not sided with the liberals, the vote would have been 5-4 to overturn, effectively leaving the law in limbo, awaiting another case.

          1. Yeah, good point. When the Court makes controversial decisions, it’s best for the country and for the Court itself that it act decisively (and, preferably, unanimously). Earl Warren understood this when he held a fractious group of justices together as one in Brown and the other school-desegregation cases.

            And the decisions against Nixon in the Watergate tapes case, and against Clinton in the Paula Jones case, were also both unanimous (meaning that, even in the most politically fraught cases, those presidents’ own appointees voted against them).

    2. I’m cynically skeptical either Roberts or the others are hewing to judicial principles as much as all that. I think there’s a lot of inside baseball being played here. Specifically, it looks to me like the dissenters (excepting Thomas) are trying to find ways to undermine abortion rights without admitting they’re doing that (Thomas, OTOH, just flat out admits it). And it seems to me Robrts is likewise trying to find ways to support abortion rights without saying he’s doing that. Kavanaugh, in particular, seems to me to be trying to hide a right-wing position behind an appeal to process.

    3. Collins is a dupe and a fraud and I hope Mainers have finally seen through her BS. Polls are showing that they do. We dems so desperately need to take back the Senate. Moscow Mitch is as treacherous as the “president”.

  4. Roberts seems to be finding back-door arguments to support liberal causes that avoid others labeling him a liberal. From the things he has said, I think he dislikes (hates) tRump for his disrespect for the law and judges. He probably also doesn’t want SCOTUS to be viewed as the politicized joke institution that it has become. Hopefully, his distaste for tRump will produce a vote to release the orange blimp’s financial records.

  5. Just as I am anxious to see tRump out of office (and in prison), I am also eager to get to the end of his reign before RBG “decides” to “retire“. I just know McConnell has a Federalist Society approved flunky waiting to be rammed through at the last moment.

    1. A Trump loss in November and a Republican Senate majority loss in November are entirely different things. It’s entirely possible that Biden is elected, RBG retires soon after his inauguration, and McConnell still holds a lot of cards on her replacement.

      1. Good point. I suppose McConnell could make up a rule so no left leaning candidate can be confirmed. Or just sit on nominations for years until Biden offers him one with a Federalist Society stamp of approval.

    1. Yeah, I don’t think Roe v. Wade is safe by any means. It certainly isn’t safe from further erosion that hasn’t already been tried and rejected within the past couple years — which is the way I think CJ Roberts would like to take things, given his druthers.

      And it may not be safe from being overruled outright. Justice Thomas expressly set out his willingness to do so just today, and Alito has made clear he’s of the same mind. Gorsuch and Kavanaugh, I suspect, likely agree.

      So it all comes down on the shoulders of Chief Justice Roberts, an uncomfortable place for a professed opponent of abortion, and of the Roe v. Wade decision itself (and a practicing Catholic, to boot), to be.

      And should Donald Trump get another appointment to replace Justice Ginsburg or one of the other liberals? Well, game over, folks.

  6. WSJ’s lead editorial 6/30: “Roe has poisoned so much of American political life, and politicized the judiciary…by removing abortion from legislative debate.” What might happen if democracy returned to where it was before documents were “living” and could be construed to mean other than what they said when passed? when law was subject to change only by elected reps?

    1. I haven’t got access to the WSJ but it is certainly true that we’d be better off if the abortion question was settled by explicit law rather than relying on Roe. AFAIK, both sides of the abortion debate have said this at various times. Of course, both sides also don’t want to actually try to get an abortion law passed. The Democrats have it their way right now with Roe. The Republicans know that most voters are in favor of legal abortion so they feel they’re more likely to defeat abortion by getting SCOTUS to reverse Roe.

      1. It isn’t true that the “Democrats have their way right now with Roe”. Abortion rights have been restricted all over the country. Democrats would (and should) advance legislation making this explicit if they controlled Congress and the presidency. Whether they could get it passed is an open question.

        1. Yes, but don’t you get the sense that the Dems don’t want to rock the boat? So far they’ve been able to keep abortion legal though they do have to fight for it in certain parts of the country. They would be much more motivated to pass an abortion law if SCOTUS upheld some of these anti-abortion laws passed in red states but that hasn’t happened yet. It’s also a polarizing issue. Even though most voters want abortion to be legal, the process of passing such a law might make more enemies than friends.

            1. Sounds good to me, though I wonder if Biden is merely pandering, Regardless, getting rid of the Hyde Amendment would be a long way from passing an abortion law, though it would certainly take the voters’ temperature on the subject.

          1. Were Roe v. Wade to be overruled, the legality of abortion vel non would be left up to each of the 50 states. Many red states would immediately outlaw it completely (indeed, many red states have all but done so already, but enforcement of those statutes has been stayed pending appellate review).

            This would mean that women in those states — particularly poor women, and other women at risk, who are unable to travel to another state — would be completely foreclosed from obtaining an abortion at any stage of their pregnancies (very possibly upon pain of criminal prosecution).

            I, for one, do not find that a circumstance to which one ought to aspire.

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