The Supreme Court today struck down a Louisiana law that required abortionists to obtain hospital admitting privileges. Unfortunately, Chief Justice John Roberts sided with his pro-abortion colleagues to invalidate the law.
Justice Roberts wrote his own concurring opinion in which he held that the Louisiana law is unconstitutional because is identical to a Texas law struck down by the Court in Whole Women’s Health v. Hellerstedt in 2016. While Roberts acknowledges that Hellerstedt was “wrongly decided,” he said the Court was required to “treat like cases alike” under the doctrine of stare decisis.
While stare decisis or adherence to precedence is an important factor in the Court’s decision-making, it cannot be elevated over higher principles of justice, especially when human life is at stake. Using Justice Roberts’ line of argumentation in today’s ruling, would he have believed himself bound to uphold the Supreme Court’s holding that blacks were not citizens in Dred Scott v. Sandford?
Roberts adds insult to injury by cementing the unwieldly “undue burden” test in Planned Parenthood v. Casey. He writes that admitting privileges laws pose a “substantial obstacle” to the availability of abortion—regardless of the laws’ benefits to women. He goes into great detail about the alleged “obstacles” the law would have imposed on abortion, but conveniently ignores the fact that three of the five abortionists who challenged the Louisiana law were cited, investigated, or shut down for committing serious health violations. One of the clinics was closed permanently after it performed abortions on at least five minor children without reporting that they had been raped. At another clinic, a woman suffered severe bleeding and had to have her uterus removed because the abortionist did not have the required medical equipment to treat her.
It is no surprise that these abortionists could not obtain hospital admitting privileges.
But Roberts seems to forget that the law was passed because women are hurt and killed by abortion. Moreover, he makes no mention of the innocent babies who are savagely murdered well into the second trimester in Louisiana. In applying Casey, the Court has historically held that a law cannot impose an “undue burden” on women seeking abortion. In today’s ruling, however, Roberts actually refocuses Casey by arguing—under the auspice of protecting “access”— that a law cannot impose a “substantial obstacle” between abortionists and their blood money.
Roberts is critical of his pro-abort colleagues for their use of a “balancing test” to weigh the benefits of pro-life laws against access to abortion, writing that “under such tests . . . judicial courage is impaired.” But Roberts’ reveals his own lack of judicial courage in upholding a decision he admits was wrongly decided to begin with.
Justices Clarence Thomas, Samuel Alito, and Neil Gorsuch dissented from the majority, writing that “the abortion right recognized in this Court’s decisions is used like a bulldozer to flatten legal rules that stand in the way.” Justice Brett Kavanaugh joined in that opinion but also filed a separate dissent.
Life Legal filed two “friend of the Court” or amicus briefs in support of the Louisiana law. Our brief on behalf of Abby Johnson is available here and our brief on behalf of Operation Rescue is available here.