Bench Memos

What Happens in Abortion Cases Stays in Abortion Cases

Despite the controversy and excitement, the Supreme Court’s abortion decisions should be exactly that — court decisions. Justices are expected to ignore the commotion and apply the same generally applicable legal rules that govern all other areas of law. Justice Breyer’s opinion in Whole Women’s Health v. Hellerstedt demonstrates that reality fails to live up to this ideal.

It may surprise non-lawyers that one of the most objectionable aspects of Justice Breyer’s opinion has nothing to do with abortion. Instead, it concerns a generic legal principle that has bored law students for centuries — res judicata.

Res judicata is the legal rule that prevents plaintiffs from relitigating a case after suffering an adverse judgment. This common-sense principle prevents endless bouts of litigation in which the same unsatisfied plaintiffs repeatedly sue the same defendants until they get the outcome that they want.

Ordinarily, this rule would have eliminated many of the Hellerstedt plaintiffs’ claims. For example, the plaintiffs had previously brought an unsuccessful statewide challenge to HB2’s requirement that abortionists have admitting privileges at a nearby hospital. Under normal circumstances, they could not bring a second identical challenge to that provision. Sadly, abortion cases do not qualify as “normal circumstances.”

Soon after losing their first case, the plaintiffs brought a second lawsuit. This time, they did not include a statewide challenge to the admissions requirement. In his dissent, Justice Alito notes that including such a subsequent challenge would have been so frivolous as to open the plaintiffs’ attorneys to sanctions.

However, the district-court judge unilaterally added the impermissible claim to the lawsuit. There is no justification allowing a district court to take such an action. The rule of res judicata applies to district-court judges as much as it applies to plaintiffs.

On appeal, the plaintiffs asked the Court to uphold the district-court’s judgement. The Supreme Court was therefore faced with the question of whether the challenge was prohibited by the doctrine of res judicata.

Normally, the Supreme Court would have reversed the lower court, and it would not even constitute a close call. Unfortunately, anyone who expects the normal rules of law to apply in abortion cases will face constant disappointment.

In order to justify departing from the normal rules, Justice Breyer relied, at least in part, on an unprecedented argument. He claimed that where “important human values” are at stake, the normal rules of res judicata are weakened. Apparently, abortion is the first “important human value” to ever come before the Court. Justice Breyer then argued that factual changes occurring between the plaintiffs’ two lawsuits were sufficient to defeat at least this new, weaker version of res judicata.

Not only has this legal principle never appeared in a single previous judicial opinion, it strikes a blow right at the heart of equal justice. The rule would invite judges to pick and choose which plaintiffs’ cases are important enough to merit a second chance and which cases are not. It would introduce significant uncertainty in cases that defendants reasonably believed to have been settled, and launch waves of litigation.

However, that is unlikely to occur because no one is going to take this new rule seriously. Court watchers have had decades to learn the lesson that there is one body of law for abortion cases and one for all other types of cases. Justice Breyer’s damaging innovation will likely join a host of other lawless innovations that the Court only utilizes in order strike down abortion restrictions. In other words, “what happens in abortion cases, stays in abortion cases.”

Howard Slugh is an attorney practicing in Washington, D.C. He is a co-founder of the Jewish Coalition for Religious Liberty.


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