Bench Memos

Law & the Courts

The Supreme Court’s Abortion Lawlessness

Now that I’m back, permit me some observations on the Court’s ruling against Texas abortion provisions in Whole Woman’s Health v. Hellerstedt:

1. The “undue burden” standard that Justice Kennedy (together with Justice O’Connor and Justice Souter) concocted in Planned Parenthood v. Casey (1992) is an unintelligible inanity, a “verbal shell game” that (as Justice Scalia observed in dissent in that case) “will conceal raw judicial policy choices” and “has no principled or coherent legal basis.”

All that the majority’s ruling really means is that five justices don’t like the Texas provisions that were being challenged. Justice Ginsburg, as it happens, publicly advertised her own hostility to those provisions back in 2014, when they were under review in the Fifth Circuit.

2. I’m very surprised that Justice Kennedy, instead of writing the majority opinion himself, assigned it to Justice Breyer. Breyer, after all, authored the Court’s 2000 ruling in Stenberg v. Carhart that held that Nebraska’s partial-birth abortion ban was unconstitutional, and Kennedy, in dissent, vigorously protested that Breyer had misinterpreted Casey’s undue-burden standard. Why would Kennedy give Breyer another opportunity? (Possible topic for later post: And did Breyer exploit that opportunity and snooker Kennedy into signing onto propositions inconsistent with Kennedy’s previous positions?)

3. As utterly lawless as it is, the majority’s ruling was entirely predictable. One year earlier, on June 29, 2015, the same five-justice majority issued an order that blocked the Texas provisions from taking effect. Given the high threshold that must be met for such an order, there could hardly have been a clearer signal that Justice Kennedy would join forces with the liberals in this case. (It’s a mystery to me how some very intelligent pro-life lawyers seemed genuinely to believe that Kennedy might alter course.)

4. That June 2015 order also made clear that Justice Ginsburg would not recuse herself from the case, despite her extraordinary public criticism of the Texas law. (Contrast Justice Scalia’s decision to recuse himself from a Pledge of Allegiance case after he had made public comments on the particular case at an earlier stage.) Had Ginsburg recused, the majority needed for that order would not have existed. Further, as Ginsburg surely realized, her recusal would likely have led to a 4-4 affirmance of the Fifth Circuit’s ruling in favor of the Texas law. (Because of Justice Scalia’s death, her non-recusal ended up not being outcome-determinative.)

Had a conservative justice failed to recuse under such circumstances, newspaper editorials across the country would have condemned the justice. But liberal justices can take comfort in the knowledge that the media will apply a very different standard to them.

5. Justice Thomas and Justice Alito (joined by the Chief and Thomas) each wrote excellent dissents. Given my lateness, I won’t try to summarize them. But I will call attention to a few highlights.

Thomas’s dissent soundly calls into question the whole tiers-of-scrutiny approach—from rational-basis review to intermediate scrutiny to strict scrutiny—that the Court has adopted in reviewing constitutional claims. Thomas argues both that the tiers have no basis in the Constitution and that the Court “easily … tinkers with levels of scrutiny to achieve its desired result.” (As he points out, last week’s ruling on racial preferences in Fisher v. University of Texas aptly illustrates the latter point.)

Alito’s lengthy dissent exposes the majority’s “patent refusal to apply well-established law in a neutral way”—on res judicata, the evidentiary showing needed for a facial challenge, and severability. Lest all this sound too technical, let me illustrate Alito’s demonstration of the majority’s lawlessness by quoting some of what Alito has to say on the last matter (statutory citations omitted):

By forgoing severability, the Court strikes down numerous provisions that could not plausibly impose an undue burden. For example, surgical center patients must “be treated with respect, consideration, and dignity.” That’s now enjoined. Patients may not be given misleading “advertising regarding the competence and/or capabilities of the organization.” Enjoined. Centers must maintain fire alarm and emergency communications systems and eliminate “[h]azards that might lead to slipping, falling, electrical shock, burns, poisoning, or other trauma.” Enjoined and enjoined. When a center is being remodeled while still in use, “[t]emporary sound barriers shall be provided where intense, prolonged construction noises will disturb patients or staff in the occupied portions of the building.” Enjoined. Centers must develop and enforce policies concerning teaching and publishing by staff. Enjoined. They must obtain in­formed consent before doing research on patients. Enjoined. And each center “shall develop, implement[,] and maintain an effective, ongoing, organization-wide, data driven patient safety program.” Also enjoined. These are but a few of the innocuous requirements that the Court invalidates with nary a wave of the hand.


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