SCOTUS Abortion Decision: “A sign we have lost our way,” says Justice Gorsuch

The U.S. Supreme Court just struck another blow against the protection of life with Justice Roberts breaking a tie.


With its decision today by a 5-4 vote the Court struck down a Louisiana law requiring doctors in abortion clinics to have admitting privileges to a hospital in case of an emergency during the procedure.


This plurality decision, written by Justice Breyer and joined by Justices Ginsburg, Kagan, and Sotomayor, focused on the federal trial court judges’ conclusion that the law could not be demonstrated to protect the health of patients and would create a burden on the ability of women in the state to get abortions. The U.S. Court of Appeals for the Fifth Circuit had come to the opposite conclusion, but the Supreme Court sided with the trial judge.


The reasoning of the majority decision echoes a U.S. Supreme Court ruling that struck down a similar Texas law in 2016, opining that requiring doctors to have hospital admitting privileges does not advance any valid interests the state had in protecting women’s health and created a substantial burden to exercise the right to an abortion.


Again, it was Chief Justice Roberts who broke the tie, while at the same time declining to endorse the other justices’ reasoning behind the decision. He reasoned instead that since this law was the same as the law struck down in the Texas case (which he said was wrongly decided), the Court had to strike this one down as well.


There were three dissenting opinions.


Justice Thomas concluded the Court’s early abortion 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.” He provides a devastating critique of the Court’s abortion decisions, calling Roe v. Wade “grievously wrong” and pointing out that it was “farcical” to believe the 14th Amendment, enacted in 1868, created a right to abortion. “In 1868, when the Fourteenth Amendment was ratified, a majority of the States and numerous Territories had laws on the books that limited (and in many cases nearly prohibited) abortion, said Justice Thomas. “It would no doubt shock the public at that time to learn that one of the new constitutional Amendments contained hidden within the interstices of its text a right to abortion. The fact that it took this Court over a century to find that right all but proves that it was more than hidden—it simply was not (and is not) there.”


Justice Alito’s dissent says that in the 2016 Texas case and this one, “the abortion right recognized in this Court’s decisions is used like a bulldozer to flatten legal rules that stand in the way.” He focused on the reality that it was impossible to know what the effect of the Louisiana law would be because the federal courts prevented it from going into effect. He also noted that the interests of abortion doctors (to continue their business without regulation) in this case were at odds with their clients whom the state was trying to protect by requiring higher medical standards.


Justice Gorsuch’s dissent points out that the justices voting to strike down the law distort many legal rules, like 1) deference to the legislature, and 2) that only people directly affected by a law may challenge it in court. He concludes, “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.”


We couldn’t agree more with Justice Gorsuch in this case. 


However, this decision, along with the recent decision we reported on where SCOTUS redefined “sex” in Title IX to encompass “sexual orientation” and “gender identity” shows the Courts proclivity to legislate from the bench.


These actions disrupt the separation and balance of power vital to our form of governmentindeed, the very foundation of our nation.