Monday, June 29, 2020
Today, the U.S. Supreme Court gave another win to the abortion industry through its opinion in June Medical Services L.L.C. v Russo, which overturned a commonsense Louisiana state law requiring physicians who perform abortions to hold admitting privileges at a nearby hospital to ensure a continuity of care. On one hand, it’s good to keep in mind that this ruling is narrow in scope and does not equate to a decision on the overall "right" to abortion (wrongly created in Roe v. Wade). On the other, it is still a dismaying decision, reminding the nation that the time has come to upend the fundamental injustice of treating the unborn as non-persons under the law.
However, far more troubling than even the opinion’s immediate result is that the Supreme Court tragically failed to correct its disastrous litmus test for reviewing whether health and safety standards for abortion clinics are constitutional. This litmus test was created just four years ago in Whole Woman's Health v. Hellerstedt by a bare 5-4 majority (before Justices Gorsuch or Kavanaugh were appointed). Perhaps most disappointing was that Chief Justice Roberts joined a 5-4 majority today to strike down a commonsense public safety law opposed by the abortion industry. Justice Roberts justified his vote by saying he was supporting the precedent set in Whole Woman’s Health—even though he had originally dissented with that opinion when it was written just four years ago!
By that logic, the Supreme Court can never reverse a previous decision regardless of how egregious it might be. If this is the logic the Chief Justice is going to apply, there is no point to supporting new appointments to the Supreme Court because all new Justices will be handcuffed by what previous Courts have said! Yet both history and commonsense show how wrong that is.
Unfortunately, today’s decision continues to place the health and safety of women in jeopardy by allowing rogue, profit-oriented abortionists to run the industry, rather than community doctors. A billion-dollar industry should be held accountable for ensuring women’s safety. With this opinion, the Court implies that the slightest, most remote, and even purely hypothetical inconvenience or expense to the abortion industry is enough to trigger an "undue burden" supposedly for the women who would seek out an abortion. In no other place in constitutional law do such special rights exist, which clearly do nothing for the safety of patients, but only ensure less accountability for the billion-dollar industry of death.
It also furthers the chipping away of our representative process by which laws affecting health and safety are made by elected officials, who are responsive and accountable to the people. In doing so, the Court continues to make the judicial branch, rather than the state legislatures, the ultimate arbiter of questions involving public health.
Ultimately, this case doesn’t guarantee any particular results when abortion laws are challenged. However, it does make common sense restrictions and safety measures for abortions more likely to be challenged in court and more vulnerable to judicial activism. And it means that, at least for now, we’re stuck with the mess the Court created in Hellerstedt as we continue to fight for the health, safety and lives of mothers and their unborn children.
But rest assured, the fight continues.