Supreme Blunder

Jun 29, 2020

The U.S. Supreme Court released a plurality 4-1-4 opinion siding with the lower District Court that struck down the Louisiana state law known as the  “Unsafe Abortion Protection Act,” which requires doctors performing abortions to have admission privileges at a state-authorized hospital within 30 miles of the abortion center. All doctors in Louisiana at outpatient surgical facilities, except abortion centers, must have admitting privileges at a local hospital.  

Four Justices (Breyer, Ginsburg, Sotomayor, and Kagan) concluded that the state was barred from raising standing because they did not press that argument in the lower courts (even though the Court of Appeals ruled on standing), and that the findings of the lower District Court were not “clearly erroneous.” 

Chief Justice Roberts did not join the above four, but he did concur in the judgment. In 2016, Roberts dissented in a similar Texas law (Whole Woman’s Health v. Hellerstedt) because it created a “balancing test” rather than follow the prior Court-created “undue burden” test in Planned Parenthood of Southeastern Pa. v. Casey. Yet even though the lower District Court applied the balancing test in Whole Woman’s Health, Roberts still concurred in the judgement on the basis that Whole Woman’s Health was binding precedent. He wrote: “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.” 

Although Roberts stated he was reluctant to not follow a four-year-old “precedent” even though he disagreed with it, two years ago he voted to overturn a 40-year-old precedent, finding public sector union fees violated the First Amendment (Janus v. American Federation of State, County, and Municipal Employees, Council 31).

Justice Thomas filed a strong dissent, which no other Justice joined, arguing that the plaintiffs lacked standing, and that the abortion decisions were not supported by the Constitution. Thomas states that the Court’s abortion decisions are “a creation that should be undone.” He also states that Roe v. Wade “is grievously wrong for many reasons.” He continued by stating, “we exceed our constitutional authority whenever ‘we appl[y] demonstratively erroneous precedent instead of the relevant law’s text.’” He also criticized the case plurality opinion, stating that no five Justices could agree on the legal standard. 

Justice Alito filed a dissent, in which Thomas joined except for the portion suggesting a remand for a new trial, and Kavanaugh joined in part. Kavanaugh and Gorsuch also filed separate dissents.

Liberty Counsel filed an amicus brief at the High Court on behalf of Operation Rescue and the National Hispanic Christian Leadership Conference (NHCLC) in June Medical Services LLC v. Russo (formerly June Medical Services LLC v. Gee). As Liberty Counsel’s amicus brief outlines, Operation Rescue uncovered numerous instances of grossly unsafe practices at several abortion facilities in Louisiana, including at the Delta Clinic in Baton Rouge where two women died as a result of botched abortions and countless more were sent to the hospital. Had Louisiana’s Act 620 been in effect at the time, perhaps these two women would still be alive. 

In June 2014, Louisiana passed Act 620, known as the “Unsafe Abortion Protection Act,” which requires “that every physician who performs or induces an abortion shall have active admitting privileges at a hospital that is located not further than thirty miles from the location at which the abortion is performed or induced.” The Louisiana Legislature enacted the bill with the intent to ensure the health and safety of the mothers of unborn children by guaranteeing all doctors have the mandatory competency and by establishing greater continuity of care. To have admitting privileges, the doctor must effectively be an approved practitioner at that hospital, which universally requires a higher level of background scrutiny. Louisiana’s purpose for such credentialing was to prevent the house of horrors-type scenario that arose in the Kermit Gosnell story. 

Operation Rescue is a leading pro-life advocacy organization that has worked for decades to uncover abortion facility misconduct, expose it to the public, and bring the offenders to justice. The NHCLC represents more than 500,000 churches throughout the world that are deeply concerned about the medical care available to pregnant women and the unsafe conditions that were present in Louisiana prior to the passage of Louisiana Act 620. 

Liberty Counsel’s Founder and Chairman Mat Staver said, “Today’s opinion is another Supreme blunder by the High Court in a long line of erroneous abortion cases that have no basis in the Constitution. The ‘Unsafe Abortion Protection Act’ is a reasonable and constitutional regulation. For now, the abortion doctors in Louisiana will continue to operate below the standard of care required by all other doctors performing outpatient surgery. Until the day finally comes when unborn children are no longer violently killed by abortion, states must at least offer legislation that protects women from the unsafe, unlawful, grossly negligent, and filthy practices that result from abortionists like Kermit Gosnell.” 

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