Fr. Z's Blog

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.

Even a free-thinking deist asserted that humanity has an “inalienable right to life” given by the Creator. The SCOTUS decision is a defeat for humanity.

— Bishop Don Hying (@bishophying) June 29, 2020

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

US HERE – UK HERE

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!