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SCOTUS Louisiana Key Excerpts

ve8QAd   |   June 30, 2020


Chief Justice John Roberts

“I joined the dissent in Whole Woman’s Health and continue to believe that the case was wrongly decided. The question today however is not whether Whole Woman’s Health was right or wrong, but whether to adhere to it in deciding the present case.”

“The legal doctrine of stare decisis requires us, absent special circumstances, to treat like cases alike. The Louisiana law imposes a burden on access to abortion just as severe as that imposed by the Texas law, for the same reasons. Therefore Louisiana’s law cannot stand under our precedents.”

Justice Clarence Thomas

“Today a majority of the Court perpetuates its ill-founded abortion jurisprudence by enjoining a perfectly legitimate state law and doing so without jurisdiction.

“The plurality and the Chief Justice… 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.”

“This Court created the right to abortion based on an amorphous, unwritten right to privacy, which it grounded in the ‘legal fiction’ of substantive due process. As the origins of this jurisprudence readily demonstrate, the putative right to abortion is a creation that should be undone.”

“The Court’s current formulation of the stare decisis standard does not comport with our judicial duty under Article III which requires us to faithfully interpret the Constitution. Rather, when our prior decisions clearly conflict with the text of the Constitution, we are required to privilege the text over our own precedents. Because Roe and its progeny are premised on a demonstrably erroneous interpretation of the Constitution, we should not apply them here.

Even under THE CHIEF JUSTICE’s approach to stare decisis, continued adherence to these precedents cannot be justified. Stare decisis is not an inexorable command, and this Court has recently overruled a number of poorly reasoned precedents that have proved themselves to be unworkable. As I have already demonstrated, Roe’s reasoning is utterly deficient—in fact, not a single Justice today attempts to defend it.

Moreover, the fact that no five Justices can agree on the proper interpretation of our precedents today evinces that our abortion jurisprudence remains in a state of utter entropy.”

“More importantly, we exceed our constitutional authority whenever we apply demonstrably erroneous precedent instead of the relevant law’s text. 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.”


Justice Samuel Alito

“The majority bills today’s decision as a facsimile of Whole Woman’s Health v. Hellerstedt, and it’s true they have something in common. In both, the abortion right recognized in this Court’s decisions is used like a bulldozer to flatten legal rules that stand in the way… Today’s decision claims new victims. The divided majority cannot agree on what the abortion right requires, but it nevertheless strikes down a Louisiana law, Act 620, that the legislature enacted for the asserted purpose of protecting women’s health. To achieve this end, the majority misuses the doctrine of stare decisis, invokes an inapplicable standard of appellate review, and distorts the record.

“The plurality eschews the constitutional test set out in Casey and instead employs the balancing test adopted in Whole Woman’s Health. The plurality concludes that the Louisiana law does nothing to protect the health of women, but that is disproved by substantial evidence in the record. And the plurality upholds the District Court’s finding that the Louisiana law would cause a drastic reduction in the number of abortion providers in the State even though this finding was based on an erroneous legal standard and a thoroughly inadequate factual inquiry.

The Chief Justice stresses the importance of stare decisis and thinks that precedent, namely Whole Woman’s Health, dooms the Louisiana law. But at the same time, he votes to overrule Whole Woman’s Health insofar as it changed the Casey test.

Both the plurality and the Chief Justice hold that abortion providers can invoke a woman’s abortion right when they attack state laws that are enacted to protect a woman’s health. Neither waiver nor stare decisis can justify this holding, which clashes with our general rule on third-party standing. And the idea that a regulated party can invoke the right of a third party for the purpose of attacking legislation enacted to protect the third party is stunning. Given the apparent conflict of interest, that concept would be rejected out of hand in a case not involving abortion.

For these reasons, I cannot join the decision of the Court.”

“In sum, contrary to the plurality’s assertion, there is ample evidence in the record showing that requiring admitting privileges has health and safety benefits. There is certainly room for debate about the need for this requirement, but under our case law, this Court’s task is not to ascertain whether a law ‘adds significantly’ to the existing regulatory framework. Instead, when confronted with a genuine dispute about a law’s benefits, we have afforded legislatures ‘wide discretion’ in assessing whether a regulation serves a legitimate medical need and is medically reasonable even in the face of medical and scientific uncertainty. Louisiana easily satisfied this standard.

“For these reasons, both the plurality and the Chief Justice err in concluding that the admitting-privileges requirement serves no valid purpose.”

“Stare decisis is a major theme in the plurality opinion and that of the Chief Justice. Both opinions try to create the impression that this case is the same as Whole Woman’s Health and that stare decisis therefore commands the same result. In truth, however, the two cases are very different. While it is certainly true that the Texas and Louisiana statutes are largely the same, the two cases are not. The decision in Whole Woman’s Health was not based on the face of the Texas statute, but on an empirical question, namely, the effect of the statute on access to abortion in that State. The Court’s answer to that question depended on numerous factors that may differ from State to State, including the demand for abortions, the number and location of abortion clinics and physicians, the geography of the State, the distribution of the population, and the ability of physicians to obtain admitting privileges. There is no reason to think that a law requiring admitting privileges will necessarily have the same effect in every state. As a result, just because the Texas admitting privileges requirement was found by this Court, based on evidence in the record of that case, to have substantially reduced access to abortion in that State, it does not follow that Act 620 would have comparable effects in Louisiana. The two States are neighbors, but they are not the same. Accordingly, the record-based empirical determination in Whole Woman’s Health is not controlling here.

“The suggestion that Whole Woman’s Health is materially identical to this case is ironic, since the two cases differ in a way that was critical to the Court’s reasoning in Whole Woman’s Health, i.e., the difference between a pre-enforcement facial challenge and a post-enforcement challenge based on evidence of the law’s effects.”

Justice Neil Gorsuch

“The judicial power is constrained by an array of rules. Rules about the deference due the legislative process, the standing of the parties before us, the use of facial challenges to invalidate democratically enacted statutes, and the award of prospective relief. Still more rules seek to ensure that any legal tests judges may devise are capable of neutral and principled administration. Individually, these rules may seem prosaic. But, collectively, they help keep us in our constitutionally assigned lane, sure that we are in the business of saying what the law is, not what we wish it to be.

“Today’s decision doesn’t just overlook one of these rules. It overlooks one after another. And it does so in a case touching on one of the most controversial topics in contemporary politics and law, exactly the context where this Court should be leaning most heavily on the rules of the judicial process.”

“When confronting a constitutional challenge to a law, this Court ordinarily reviews the legislature’s factual findings under a ‘deferential’ if not ‘[u]ncritical” standard… Today, however, the plurality declares that the law before us holds no benefits for the public and bears too many social costs. All while sharing virtually nothing about the facts that led the legislature to conclude otherwise. The law might as well have fallen from the sky.

“Of course, that’s hardly the case. In Act 620, Louisiana’s legislature found that requiring abortion providers to hold admitting privileges at a hospital within 30 miles of the clinic where they perform abortions would serve the public interest by protecting women’s health and safety. Those in today’s majority never bother to say so, but it turns out that Act 620’s admitting privileges requirement for abortion providers tracks longstanding state laws governing physicians who perform relatively low-risk procedures like colonoscopies, Lasik eye surgeries, and steroid injections at ambulatory surgical centers. In fact, the Louisiana legislature passed Act 620 only after extensive hearings at which experts detailed how the Act would promote safer abortion treatment—by providing ‘a more thorough evaluation mechanism of physician competency,’ promoting ‘continuity of care’ following abortion, enhancing inter-physician communication, and preventing patient abandonment.”

“Another background rule, another exception. When it comes to the factual record, litigants normally start the case on a clean slate. While a previous case’s legal rules can cre­ate precedent binding in the current dispute, earlier ‘fact­bound’ decisions typically ‘provide only minimal help when other courts consider’ later cases with different factual ‘cir­cumstances.’ We’ve long recognized that this arrangement is re­quired by due process—because while the law binds every­one equally, parties are normally entitled to the chance to present evidence about their own unique factual circum­stances.

“No hint of these rules can be found in today’s decision. From beginning to end, the plurality treats Whole Woman’s Health’s fact-laden predictions about how a Texas law would impact the availability of abortion in that State in 2016 as if they obviously and necessarily applied to Louisi­ana in 2020. Most notably, the plurality cites Whole Woman’s Health for the proposition that admitting privi­leges requirements offer no benefit when it comes to patient safety or otherwise. But Whole Woman’s Health found an absence of benefit based only on the particular factual rec­ord before it. Nothing in the decision suggested that its con­clusions about the costs and benefits of the Texas statute were universal principles of law, medicine, or economics true in all places and at all times. Yet that is exactly how the plurality treats those conclusions—all while leaving unmentioned the facts Louisiana amassed in an effort to show that its law promises patient benefits in this place at this time.”



“By contrast, and as today’s concurrence recognizes, the legal standard the plurality applies when it comes to admitting privileges for abortion clinics turns out to be exactly the sort of all-things-considered balancing of benefits and burdens this Court has long rejected. Really, it’s little more than the judicial version of a hunter’s stew: Throw in anything that looks interesting, stir, and season to taste. In another context, this Court has described the sort of decision making on display today as inherently, and therefore permanently, unpredictable.” (Crawford v. Washington). Under its terms, ‘whether a [burden] is deemed [undue] depends heavily on which factors the judge considers and how much weight he accords each of them.’”


“Setting aside the other departures from the judicial process on display today, the concurrence suggests it can remedy at least this one. We don’t need to resort to a raw balancing test to resolve today’s dispute. A deeper respect for stare decisis and existing precedents, the concurrence assures us, supplies the key to a safe way out. Unfortunately, however, the reality proves more complicated. Start with the concurrence’s discussion of Whole Woman’s Health. Immediately after paying homage to stare decisis, the concurrence refuses to follow the all-things-considered balancing test that decision employed when striking down Texas’s admitting privileges law. In the process, the concurrence rightly recounts many of the problems with raw balancing tests. But then, switching directions again, the concurrence insists we are bound by an alternative holding in Whole Woman’s Health. According to the concurrence, this alternative holding declared that the Texas law imposed an impermissible ‘substantial obstacle’ to abortion access in light only of the burdens the law imposed—’independent of [any] discussion of [the law’s] benefits.’ And, the concurrence concludes, because the facts of this suit look like those in Whole Woman’s Health, we must find an impermissible substantial obstacle here too.


“But in this footwork lie at least two missteps. For one, the facts of this suit cannot be so neatly reduced to Whole Woman’s Health redux. For another, Whole Woman’s Health nowhere issued the alternative holding on which the concurrence pins its argument. At no point did the Court hold that the burdens imposed by the Texas law alone—divorced from any consideration of the law’s benefits—could suffice to establish a substantial obstacle. To the contrary, Whole Woman’s Health insisted that the substantial obstacle test ‘requires that courts consider the burdens a law imposes on abortion access together with the benefits th[e] la[w] confer[s].’ And whatever else respect for stare decisis might suggest, it cannot demand allegiance to a non-existent ruling inconsistent with the approach actually taken by the Court.”



“To arrive at today’s result, rules must be brushed aside and shortcuts taken. While the concurrence parts ways with the plurality at the last turn, the road both travel leads us to a strangely open space, unconstrained by many of the neutral principles that normally govern the judicial process. The temptation to proceed this direction, closer with each step toward an unobstructed exercise of will, may be always with us, a danger inherent in judicial review. But it is an impulse this Court normally strives mightily to resist. Today, in a highly politicized and contentious arena, we prove unwilling, or perhaps unable, to resist that temptation. Either way, respectfully, it is a sign we have lost our way.”


Justice Brett Kavanaugh


“Today, five Members of the Court reject the Whole Woman’s Health cost-benefit standard. A different five Members of the Court conclude that Louisiana’s admitting-privileges law is unconstitutional because it ‘would restrict women’s access to abortion to the same degree as’ the Texas law in Whole Woman’s Health.


“I agree with the first of those two conclusions. But I re­spectfully dissent from the second because, in my view, ad­ditional factfinding is necessary to properly evaluate Loui­siana’s law. As Justice Alito thoroughly and carefully explains, the factual record at this stage of plaintiffs’ facial, pre-enforcement challenge does not adequately demon­strate that the three relevant doctors (Does 2, 5, and 6) can­not obtain admitting privileges or, therefore, that any of the three Louisiana abortion clinics would close as a result of the admitting-privileges law. I expressed the same concern about the incomplete factual record more than a year ago during the stay proceedings, and the factual record has not changed since then. In short, I agree with Justice Alito that the Court should remand the case for a new trial and additional factfinding under the appropriate legal stand­ards.”

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