SCOTUS decision on Louisiana abortion clinic law.

Bp. Donald Hying has been in his See of Madison for just a few days over a year. He has not be either idle or shy. See his public reaction to the latest terrible decision of the Supreme Court of the United States in the case of June Medical Services L. L. C. v. Russo.  Breyer wrote the opinion.

The decision is also a defeat for law and order.   One talking head I heard opine about the decision thought that this is Justice Roberts attempt to get the SCOTUS out of politics.   If he is right, then Roberts is beyond naive.  Moreover, it should matter to Justices if people who don’t sit on the Court politicize the Court.  Their job is to be impartial.  This is why they have life appointments.

What was this case?  Louisiana passed a law (Act 620) having bi-partisan backing which required abortion (therefore oath violating) practicing physicians at abortion clinics to have admitting privileges at hospitals… because things can go very wrong… within 30 miles.  The law was virtually the same as one in Texas.  In 2016, the SCOTUS in found 5-3 in the case Whole Woman’s Health v. Hellerstedt that the Texas law was unconstitutional.  Breyer wrote the opinion. Justice Thomas filed the dissent and Alito and Roberts joined in the dissent.  Opinions HERE.

The Louisiana law had survived the 5th Circuit Court of Appeal, which said that the Louisiana law was different from the Texas law.   Then the District Court found on rehearing that the Louisiana law unconstitutional because of Whole Woman’s Health.   In February the SCOTUS told Louisiana not to enforce the law.  Soon after, in early March, Sen. Schumer threatened the Justices in regard to this case.  HERE

Did the law (requiring doctors to have admitting privileges at a hospital within 30 miles) impose an undue burden on women seeking abortions (cf Casey)?  In Louisiana the court said that it would: if there is an emergency, whether a doctor has admitting privileges or not, women must still be admitted at a hospital emergency room under federal law if you get them to the hospital.   However, the number of abortion clinics dropped because of Act 620, which was used also to argue from Casey against the Act.

Roberts dissented when SCOTUS struck down the virtually identical Texas law.     This time, however, he swung around to the libs and voted to strike down the Louisiana law because of stare decisis.   He included a long explanation of stare decisis in the separate, concurring opinion he filed.  He said that SCOTUS overturned the Texas law in Whole Woman’s Health because it applied Casey.  Soooo… Roberts now says:

Under principles of stare decisis, I agree with the plurality that the determination in Whole Woman’s Health that Texas’s law imposed a substantial obstacle requires the same determination about Louisiana’s law. Under those same principles, I would adhere to the holding of Casey, requiring a substantial obstacle before striking down an abortion regulation.


Stare decisis instructs us to treat like cases alike. The result in this case is controlled by our decision four years ago invalidating a nearly identical Texas law. The Louisiana law burdens women seeking previability abortions to the same extent as the Texas law, according to factual findings that are not clearly erroneous. For that reason, I concur in the judgment of the Court that the Louisiana law is unconstitutional


Justice Thomas, dissenting, wrote:

Today a majority of the Court perpetuates its ill-founded abortion jurisprudence by enjoining a perfectly legitimate state law and doing so without jurisdiction. As is often the case with legal challenges to abortion regulations, this suit was brought by abortionists and abortion clinics. Their sole claim before this Court is that Louisiana’s law violates the purported substantive due process right of a woman to abort her unborn child. But they concede that this right does not belong to them, and they seek to vindicate no private rights of their own. Under a proper understanding of Article III, these plaintiffs lack standing to invoke our jurisdiction.

Despite the fact that we granted Louisiana’s petition specifically to address whether “abortion providers [can] be presumed to have third-party standing to challenge health and safety regulations on behalf of their patients,” Conditional Cross-Pet. in No. 18–1460, p. i, a majority of the Court all but ignores the question. The plurality and THE CHIEF JUSTICE ultimately cast aside this jurisdictional barrier to conclude that Louisiana’s law is unconstitutional under our precedents. But those 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. Because we have neither jurisdiction nor constitutional authority to declare Louisiana’s duly enacted law unconstitutional, I respectfully dissent.

Here is another shot from the dissent:

The Court nevertheless concluded that it need not bother with our founding document’s text, because the Court’s prior decisions—chief among them Griswold—had already divined such a right from constitutional penumbras. Roe, 410 U. S., at 152. Without any legal explanation, the Court simply concluded that this unwritten right to privacy was “broad enough to encompass a woman’s [abortion] decision.” Id., at 153.

The opinion, as you read gets strong and stronger, a tour de force in explaining the illegitimacy of Roe v. Wade and subsequent cases.

Thomas concluded:

More importantly, we exceed our constitutional authority whenever we “appl[y] demonstrably erroneous precedent instead of the relevant law’s text.” Gamble, supra, at ___ (THOMAS, J., concurring) (slip op., at 2). Because we can reconcile neither Roe nor its progeny with the text of our Constitution, those decisions should be overruled. * * * Because we lack jurisdiction and our abortion jurisprudence finds no basis in the Constitution, I respectfully dissent.

This man is amazing.

If you haven’t read this, it’s terrific:

My Grandfather’s Son: A Memoir


On the one side, stare decisis is undoubtedly important.

HOWEVER… the laws that are precedents have to be good laws, the opinions have to be good.  Thomas shows how vaporous Roberts swing vote was.

This was a bad day for law and for life.

And to hell with what the people of Louisiana wanted!


About Fr. John Zuhlsdorf

Fr. Z is the guy who runs this blog. o{]:¬)
This entry was posted in Emanations from Penumbras and tagged , . Bookmark the permalink.


  1. Chris Garton-Zavesky says:

    The Supreme Court seems to stand on all sorts of pillars, unless doing so doesn’t yield the pre-determined result. We’ve seen this repeatedly. The Affordable Care Act met a similar fate. Obergefell did, too.

    I still can’t figure out why we’re supposed to be living in the times of the ” most conservative court “in years, in which “reproductive rights” are “imperiled”.

  2. Ellen says:

    Stare decisis is important but so is morality. Would Justice Roberts have voted to uphold the Dred Scott decision?

  3. The Cobbler says:

    We can overturn the law, but we can’t second-guess our own decisions. If that isn’t liberalism in a nutshell, I don’t know what is.

    Money quote from Justice Thomas:

    More importantly, we exceed our constitutional authority whenever we “appl[y] demonstrably erroneous precedent instead of the relevant law’s text.” Gamble, supra, at ___ (THOMAS, J., concurring) (slip op., at 2).

  4. We are clearly at the point at which people must realize that trying to steer the Supreme Court with conservative appointments by conservative Presidents is a failure. The arrogance of our judicial junta must be confronted directly by both the executive branch and, most important, the legislative branch. When the Court starts to legislate or is plainly wrong, its decisions must be overturned immediately either by simple legislation or by constitutional amendments. Waiting around decades or more for the Court to recognize that it is wrong on its own is just not tenable.

  5. Joy1985 says:

    It truly saddens me to my soul that they voted like this. That it involves my state is even more heartbreaking. God have mercy on us and on the whole world. Those judges will be judged by the only TRUE Judge one day.

  6. Kenneth Wolfe says:

    This is seriously excommunication territory for John Roberts now. Will he, a disciple of DC Monsignor Peter Vaghi, simply show up at Little Flower church in Bethesda expecting communion as usual? Or will someone in a position of Church authority actually stand up to him?

    Honestly, I expect nothing in the Archdiocese of Washington.

    This decision absolutely kills any chance of touching Roe v. Wade.

  7. Fr_Sotelo says:

    It seems that when people request deviations from the Natural Law, such as with abortion or gay marriage, “stare decisis” can be swept aside to the applause of secular judges.

    However, when the Supreme Court is asked to overturn the legal precedents which enshrine the anti-life and anti-family spirit of the age, “stare decisis” becomes a rationale for allowing evil to continue.

  8. Chrisc says:

    This exactly. This is what neo-conservatives get you. People who conserve nothing and mock us with ‘their principled stands’. Justice Roberts is a joke. He is the most political chief justice since Earl Warren.

  9. TonyO says:

    Oh, please.

    (1) The concept of stare decisis is not a one-size-fits-all rule, without any room for nuance or degree. Some KINDS of rules are more to be respected / protected by the rule, and others less. For instance, when the Court is interpreting its own judicial constructs, (such as rules of evidence), it should be “very strong.” When the Court is interpreting a Congressional law, the protection / reliance should be somewhat firm – Congress CAN fix the Court’s error, but only with difficulty. When interpreting the Constitution, the deference to precedent should be least strong, since it is very nearly impossible to “fix” the Court’s error through other means.

    (2) The Constitution doesn’t give the Court the duty to uphold “its own decisions” but to uphold the Constitution. In cases where the majority of the Court is convinced that a prior Court erred in interpreting the Constitution, to abide by that error under stare decisis is to set prior court rulings over the Constitution. This is not the rule of law, it is the rule of THE COURT.

    (3) It is, further, the rule of a certain set of men who ONCE SAT on the Court, as if those had more authority than those who NOW sit on it. This too is not what the Constitution set up. Just as in the papacy (where no one pope can bind his successors after him to a juridical decision, since each pope has the same authority to decide the issue that he had), the members of the Court have the same authority to decide the issue that prior members of the Court had.

    (4) It is true that the Court should give deference to the earlier rulings of the Court, but the reason is that they should respect the fact that the prior Court sat on the same questions and reflected, in their ruling (and opinions) the thinking of that time on how the law and justice and the Constitution meet up in that issue: custom has a degree of precedential authority that bears on later judgment – it should INFORM later rule-making by showing the reasons for prior rules. But custom can be wrong, and so too can prior court decisions. The Court should give DUE deference to past reasoning, and when that past reasoning is wrong, the Court should not follow it.

    It is sickening that a Chief Justice of the Supreme Court can’t figure this out. It shows, I guess, that even if Justice is a “conservative” in some respects, he has been a frog boiled in liberal academia for so long that he cannot pull himself out the nonsense to recognize when to act.

  10. matt from az says:

    Legal positivism is a hell of a drug.

  11. Kerry says:

    “This brief historical review demonstrates that third-party standing is inconsistent with the case-or-controversyrequirement of Article III. When a private plaintiff seeks to vindicate someone else’s legal injury, he has no private right of his own genuinely at stake in the litigation. Even if the plaintiff has suffered damages as a result of another’s legal injury, he has no standing to challenge a law that does not violate his own private rights. ”

    Meanwhile, the mobs scream “You people have hurt them peoples over thataway, so we gets to pull down these statues!”

  12. Kathleen10 says:

    The court has run amuck. Justice Thomas is a lot like President Trump, a completely singular individual. His courage is spectacular. The Executive or Legislative branch can counter the Judicial branch when it gets too big for it’s britches, since they are equal, but of course it’s not likely. To legislate from the branch is dangerous, but what’s dangerous when you see your country clearly falling to Marxism? It’s like all the pieces are falling into place for them, even McDonald’s has thrown it’s support to the NAACP and the Urban League, making grand pronouncements on their marketing materials. Ronald McDonald is woke. It’s pretty much like that movie Invasion of the Body Snatchers, and everybody’s Donald Sutherland. Now the court is helping them, blatantly, as one group after another falls in line. This is mass psychosis, this is Satanic. We need God’s help, badly.

  13. Kathleen10 says:

    Sorry, branch = bench

  14. Actually, it’s not strictly true that federal judges, including the justices of the U.S. Supreme Court, get life appointments. Article III, Section 1 of the U.S. Constitution provides that federal judges hold their offices “during good behavior.” By this criterion, in view of their use of their powers to pursue political agendas instead of to uphold the law, as they swore an oath to do, the offices of most of them are forfeit.

    Of course, there needs to be the political will in the right quarters to yank from office justices who violate their oath. (And there is no St. Robert Bellarmine of the Supreme Court to speculate on whether they cease to be justices as soon as they embrace legal heresies…)

  15. robtbrown says:

    Tony O says,

    Just as in the papacy (where no one pope can bind his successors after him to a juridical decision, since each pope has the same authority to decide the issue that he had) . . .

    I don’t understand what the above means.

  16. xavier says:

    This decision is yet another rebellion of the elites.
    And a spiteful one at that.

    The elites are making it clear that abortion is the supreme sacrament that will be protected at all costs. a fortori if the plebians vote to limit abortion never mind outlawing it.
    This isn’t a judicial decision but yet another humilation ritul to put regular people in their place and to never forget who dominates them.


  17. Pingback: VVEDNESDAY EDITION – Big Pulpit

  18. Semper Gumby says:

    “Even a free-thinking deist asserted that humanity has an “inalienable right to life” given by the Creator.” A solid point by Bishop Hying.

    Excellent quote and book by Justice Thomas.

  19. pjthom81 says:

    Upon reading the opinions I come to a bit of a different conclusion than the writers above. The bottom line is that I do not believe Roberts is completely abandoning us in the same way in which other justices had. To explain shall however require me to go into some detail.

    In 2006 I was part of the March for Life. This particular March coincided with the confirmation hearings of Samuel Alito…a professor at the law school I attended at the time. He was replacing Sandra Day O’Connor….a continuing and profound source of frustration for the right to life movement. I had the great fortune at the time to live in the district represented by Chris Smith who was kind enough to relate to me that it was generally known on the hill that O’Connor had never been pro-life even at the time of her nomination. The only justice that surprised him had been Kennedy. Generally the justices views on abortion are largely known even if they are not spelled out.

    Kennedy of course (aka Justice Hamlet) is responsible for the disaster known as the Planned Parenthood vs Casey decision. The general impression I have now on re-reading the decision is that Justice Kennedy felt that he was making a very weighty moral decision…and that he wanted everyone to know just how weighty and complicated this matter was. While astounded at the moral gravity of the task in front of him he could not make a statement as to the morals governing the law. Therefore he equivocated. Fundamentally he did not see Roe as a problem that needed to be fixed.

    Before heading out the door he signed onto another opinion in the form of Whole Women’s Health that was written by Breyer that added an additional complication. It required a balancing test that placed a burden on drafters of a law restricting abortion pre-viability to prove a benefit to their law.

    Enter Roberts. Roe and Casey are at bottom a prohibition against laws prohibiting abortion. A ban on a ban. An overturn of Roe would practically reduce any analysis of an abortion regulation to what is called a rational basis scrutiny. In other words if you can articulate a reason for the regulations existence it cannot be struck down. Presently that level of scrutiny exists for post viability restrictions. Prior to the recent decision there were two restrictions that existed in pre-viability cases. The burden of the state to prove a benefit to health has now been removed. This shifts the burden and reduces the barrier to a rational basis review to one restriction…the undue burden test articulated in Casey.

    So the argument is there that Roberts pulled a Marbury…handing one side a win on the merits to win on the legal framework for future cases. I want to be clear that I do not suppose this to be a better approach than the rationales argued by Thomas Gorsuch Kavanaugh or Alito. Quite the contrary. However I think it’s apparent that Roberts sees it this way. He does not view himself as hostile to the pro-life cause as did O’Connor. He does not view it as his job to create some mystical new rule to balance all sides of the meaning of life as did Kennedy. He saw two barriers…struck the one down while giving the technical victory to the other side and he invited a review of the other standard (since Casey had not been challenged by Louisiana a review of the Casey decision would have been improper.). My read…for what it is worth….is that he wants to slowly constrain the ability of the courts to strike down restrictions. He however wishes to do so in a way that can slowly bend the weight of precedence to the side of the pro-life movement rather than look for an explicit override.

Comments are closed.