SCOTUS issues several rulings; strikes down Texas “abortion law”
Why did I put the words “abortion law” in quotes? First take a look at what occurred:
The U.S. Supreme Court on Monday struck down one of the nation’s toughest restrictions on abortion, a Texas law that women’s groups said would have forced more than three-quarters of the state’s clinics to shut down.
The decision was 5-3.
The breakdown of the justices was as one might expect: the three remaining conservatives dissent, the four outright liberals were in the majority, and swing justice Kennedy went with the liberals.
This is what the “abortion law” had required:
Passed in 2013, the law said clinics providing abortion services must meet the same building standards as ambulatory surgical centers. And it required doctors performing abortions to have admitting privileges at nearby hospitals.
So one of the main issues in the case was whether this actually was an abortion clinic safety law, as proponents of the law had claimed, or an anti-abortion law, as opponents claimed:
The Center for Reproductive Rights called the law “an absolute sham,” arguing that abortion patients rarely require hospitalization and that many patients simply take two pills.
Justice Stephen G. Breyer in writing the majority opinion said “neither of these provisions offers medical benefits sufficient to justify the burdens upon access that each imposes. Each places a substantial obstacle in the path of women seeking a pre-viability abortion, each constitutes an undue burden on abortion access, and each violates the Federal Constitution.”
Who gets to decide a question of medical safety, I wonder?:
Texas defended the restrictions, saying that states have wide discretion to pass laws in areas where there is medical and scientific uncertainty. The state said the law was passed “to ensure patient safety and raise standards of care.”
The court’s decision will affect similar laws in twelve other states, some now on hold because of court challenges. The restrictions in Texas represented a new front in efforts to restrict abortion by focusing on protecting the health and safety of the mother rather than the life of the fetus.
I don’t know whether this law had a reasonable medical purpose, or whether it really was the “sham” that its opponents have accused it of being. Nor did any of the articles I saw today on the Court’s ruling resolve that to my satisfaction: for example, by stating what percentage of the patients in abortion clinics really do have such simple procedures and what percentage have more complex ones, and how extensive is staff training and how adequate. Evidence was apparently presented in the lower courts that indicated abortion itself is a very safe procedure for the woman undergoing one these days.
The question this case presents is how much discretion does a state have to set safety standards? What constitutes an undue burden and a substantial restriction, the terms used by the majority?
No doubt these questions are answered differently by the majority and the minority in the 107-page SCOTUS decision, which can be found here. I don’t have the time to plow through it, and therefore I’m not giving my detailed opinion of their opinion except to say that the outcome does not surprise me in the least, and that in general I tend to think, along with Justice Alito in his disent, that:
Under the Supremacy Clause, federal courts may strike down state laws that violate the Constitution or conflict with federal statutes, this power, federal courts must take great care. The power to invalidate a state law implicates sensitive federal-state relations. Federal courts have no authority to carpet-bomb state laws, knocking out provisions that are perfectly consistent with federal law, just because it would be too much bother to separate them from unconstitutional provisions.
In any event, it should not have been hard in this case for the District Court to separate any bad provisions from
the good. Petitioners should have identified the particular provisions that would entail what they regard as an undue expense, and the District Court could have then concentrated its analysis on those provisions…By forgoing severability, the Court strikes down numerous provisions that could not plausibly impose an undue burden [he goes on to list many of them]…
Any responsible application of the H. B. 2 severability provision would leave much of the law intact. At a minimum, both of the requirements challenged here should be held constitutional as applied to clinics in any Texas city that will have a surgical center providing abortions…
Justice Thomas added in his own dissent:
If our recent cases illustrate anything, it is how easily the Court tinkers with levels of scrutiny to achieve its desired result. This Term, it is easier for a State to survive strict scrutiny despite discriminating on the basis of race in college admissions than it is for the same State to regulate how abortion doctors and clinics operate under the putatively less stringent undue-burden test…
…[R]ecent decisions reflect the Court’s tendency to relax purportedly higher standards of review for less preferred rights…
…The Court should abandon the pretense that anything other than policy preferences underlies its balancing of constitutional rights and interests in any given case.
In other words, the justices often pick and choose how to apply standards that should be based on the type of legal issues involved, and apply them instead based on whether each justice favors the goal of the law or not. I’m assuming that Justice Thomas is of the opinion that the conservative members of the Court are less inclined to do this and more inclined to focus on the process and applying the law fairly, whereas it is the liberal members of the Court who use an elastic and ultimately political standard for applying the legal rules (or perhaps I should write “rules”).
Whether or not Justice Thomas thinks that, I have generally observed a trend in that direction. If so, the phenomenon reflects, among other things, different attitudes between conservatives and liberals on the law and the Constitution itself, between a focus on rules and process and a focus on ends and “social justice” and an “evolving” Constitution.
Justice Thomas adds (quoting Justice Scalia in an homage to his late colleague):
Today’s decision will prompt some to claim victory, just as it will stiffen opponents’ will to object. But the entire Nation has lost something essential. The majority’s embrace of a jurisprudence of rights-specific exceptions and balancing tests is “a regrettable concession of defeat””an acknowledgement that we have passed the point where ”˜law,’ properly speaking, has any further application.” Scalia, The Rule of Law as a Law of Rules, 56 U. Chi. L. Rev. 1175, 1182 (1989).
I attended law school a long time ago—a long time ago (you do the math; I went right out of college). I’ve never practiced law; I almost dropped out of law school because I detested it, but I finished and got my degree (let me add that in those days law school was extremely cheap compared to today, even adjusted for inflation). But even back when I was in law school in those archaic times (hint: it was the 70s) I noticed a similar trend. It has gotten more pronounced in recent years, but it was already in play back then.
And is it any wonder? Justices are human, and it is not surprising that they might use their brilliant minds to further causes in which they believe, although I doubt they think they’re doing that (and nearly all SCOTUS justices are pretty darn smart, even the ones with whom you disagree, as I learned years ago from reading both the majority opinions and the dissents). Yes, they’re not supposed to do that, and the explicit goal is not to do that, but sometimes they do it and then find the legal reasoning to justify it. This is not a new phenomenon, although in recent years it seems to have become somewhat worse, with the blindfold that justice is supposed to wear becoming more and more translucent.
[NOTE: See also this about the “undue burden” rule and how it works or doesn’t work.]
[NOTE II: In other SCOTUS news, the Court issued a unanimous decision overturning Virginia ex-governor McDonnell’s corruption conviction on the grounds that the acts in question were not “official” acts, although they were “distasteful.”
Notice that in this case, although McDonnell is a Republican, even the liberals on the Court were not in favor of allowing his conviction to stand. So in this case you might say that the political desire to “get” a Republican was not the motivation for the ruling; legal considerations were. However, these over-broad definitions of an official act could have in the future come back to bite politicians on both sides of the fence. I happen to agree with the ruling, because such a law could be used to prosecute almost anyone in public office.]
So, some states and later the Supreme Court made abortion legal, because women were getting them in unsafe circumstances, back alley, coat hanger, etc. Then, a state passes a law requiring safer conditions, unlike the Kermit Gosnell abortuary, and the Court goes nuts. Some consistency would be nice, sigh.
Neo, your desire to be evenhanded has led you to construct this framing (despite the explicit qualifying sentences) when you actually know better and could properly indulge in a much more categorical presentation.
Ends oriented jurisprudence is as you say not new. But it is has not for many decades now been mostly unconscious. It has been conscious and unapologetic on the part of many jurists as well as legal philosophers and professors for at least the last 70-80 years.
Look at this garbage from Posner [widely reported], in Salon. The social engineer activist as judge shrugging at law and values intelligibility, in favor of … well I don’t know what exactly … other than he seems to presume that feelings [in the Gay Marriage column not cited here] are at the core of it, and that some crap like a presumptive social solidarity forms the field wherein , or perhaps the stage upon which these forms of expression are to be acted out and affirmed, lest … “bigotry” or something.
As that piece of —- John Rawls famously, or better infamously, said (paraphrase), “in Justice as fairness, men commit to a shared fate” and that others are entitled to our esteem as it is one of their principal needs – approval, in other words.
Now to Posner:
Well, if it comes to that it’s fine with me. Having seen the S.O.B.’s picture, I’ll bet I can thrive lawless better than Posner ever could.
A leftist President, committed to “fundamental transformation”.
A congress in collusion with that President.
A SCOTUS whose majority has embraced a jurisprudence of rights-specific exceptions and balancing tests that is “an acknowledgement that we have passed the point where ‘law,’ properly speaking, has any further application.” Scalia
No “checks and balances” means no lawful “redress of grievance”. No more certain path to tyranny exists, no more certain path to armed conflict.
If Hillary is elected, revolution and civil war is certain, which will arrive when the intolerable can no longer be endured.
DNW:
I think you misunderstand me.
I am saying that the phenomenon rests on two things, the “human” tendency of the justices, and an actual judicial philosophy that is conscious on the part of the liberal judges. Note that I wrote, before that paragraph that you quote about the “human” part of it, the following paragraph that deals with the “conscious” and deliberate part of it:
That refers to something very conscious and very deliberate, and it’s been going on for a very long time—as I believe I made clear when I said it already was happening by the time I was in law school (and in fact it had started a lot earlier, as I’m aware).
Yes, your remarks on Thomas’s homage to Scalia on the end of law as we have known it do demonstrate that you have an appreciation of the fact situation as we confront it now, and have for some time in the past.
I am simply of the opinion that you were striving for an even-handedness regarding a common human nature, which, given the history of progressive legal theorizing and maneuvering, is … overly generous.
I find it amusing that the so called center for reproductive rights actually wants to prevent reproduction. It’s amazing how many of these lefty groups have names which indicate the opposite of what they are really about.
Ray:
Orwell duly noted that when he wrote Nineteen Eighty-Four (which was finished in 1948).
Article V, Convention of States, Liberty Amendments (as a proposal).
Eight states have already signed on to the process.
A path exists to avoid civil war. It is a given the progressives will fight it. It is passing strange that “conservatives” refuse to take up the process. Almost as if some prefer a civil war.
Civil wars rarely turn out well for generation involved.
Kermit Gosnell was unavailable for comment.
The comment I posted to the WSJ’s story on the ruling”
” The ruling is preposterous.
“Neither of these provisions offers medical benefits sufficient to justify the burdens upon access that each imposes. Each places a substantial obstacle in the path of women seeking a pre-viability abortion, each constitutes an undue burden on abortion access, and each violates the federal Constitution,” Justice Stephen Breyer wrote for the court’s majority.
Forget the abortion access stuff.
Think about it from the standpoint of medicine and States’ responsibility to regulate the practice thereof. “Neither of these provisions offers medical benefits sufficient….” Do not make the mistake of thinking this is about abortion, as Breyer stupidly did. SCOTUS is regulating the practice of medicine. That is a State duty, pure and simple.
The requirement is OK for ambulatory surgery centers but is not OK for for abortion centers, wherein some women suffer complications, rarely but sometimes fatal.
THIS RULING IS NOT ABOUT ABORTION, EXCEPT TANGENTIALLY.”
This is another stake driven into the heart of States’ Rights.
OM,
I have no illusions about the horrors of civil wars. I too would vastly prefer an article V convention that successfully addressed the machinations of the Left to the alternative of civil war.
However, were such a convention held, there is a very real possibility that we would end up with something much worse (no bill of rights, no 2nd & 22nd amendments, no “unalienable” rights) and if ratified, there would be no legal rationale for resistance. And, at such a convention, the Left would expend every effort no matter how vile, to ensure such an outcome.
Under our current constitution that legal rationale not only exists but is the sworn duty of anyone who has sworn allegiance to that Constitution.
Frog,
No federal socialist entity can tolerate a competitor and the very concept of States Rights is a direct challenge to federal power, as it acts as a limitation upon federal powers.
GB:
I don’t grasp your assumption that the states and the people would agree to abandon the Bill of Rights (amendments 1-10) and following amendments and embrace tyranny that is foisted upon the nation by a majority of 9 lawyers, one chief executive, and a derelict Senate.
Are we the people to stupid or ignorant to govern ourselves or not?
@ Michael Adams: “Some consistency would be nice, sigh.”
Only the “best and the brightest” All hail Harvard and Yale.
1. The dissent on res judicata is important. Rules and precedent were twisted to decide this case.
2. As a practical matter those docs should have admitting privileges at a local hospital. No big deal. And the safety requirements for the clinic were also no big deal.
“Are we the people to stupid or ignorant to govern ourself or not?” OM
After the 2008 election of and 2012 reelection of Obama, followed now by a choice between Hillary Clinton and Donald Trump… I’m amazed (and saddened) that you would have any doubt in your mind, as to the answer.
“A person is smart. People are dumb, panicky, dangerous animals and, you know it.” Kay, “Men in Black”
GB:
I am saddened that you feel that all the voters in all the states are too stupid or too ignorant to learn. The process does not require unanimous consent.
As regards Obama, Hillary, and Trump I too am deeply disappointed.
No matter who is elected in November I have not given up hope and there is a process available. It is not a quick or easy path.
“Never give up, never give in….” Winston Churchill (?)
One of this administration’s favorite phrases is “common sense measures,” Obama uses it constantly.
To me, basic standards such as cleanliness and hospital admitting privileges are the very essence of common sense. Regardless of one’s position on abortion, there’s no doubt that these clinics are performing medical procedures. How does it benefit “women’s health” to advocate against basic health care standards?
http://www.nationalreview.com/corner/437190/women-and-life-and-court-today-march-life-president-responds
Inquiring minds ask why?
http://www.redstate.com/joesquire/2016/06/27/donald-trump-silent-scotus-abortion-ruling/
OM,
I do NOT think that ALL of the voters are too stupid or ignorant to learn. I DO think that a slim majority of the public has been so deeply indoctrinated into the left’s cultural conditioning, as to be incapable of making wise choices and thus incapable of self-governance.
Nor do I think that we should ever give up. Which is why, when faced with an intolerable choice in Presidential nominees, I propose to make the best of a disastrous situation.
Which means hoping for the best while mentally preparing for the worst. A prepared mind (a clear eyed acceptance of what is) is best situated to confront any circumstance. An unprepared mind is at the mercy of circumstance.
Cornhead:
The thing is that they were ruled a “big deal” in the sense that, de facto, the new regulations reduced the number of clinics greatly, by about 60%, and that meant that many women were more than 100 miles from a clinic when they had been much closer before.
I think it should be a state function. But then again I think abortion should be state-regulated.
GB:
Ironic your comment on the inability of people to learn from life’s lessons and that 51% of the citizens need to be told what to do. Given that Neo is a prime example of one who learned and escaped the “left’s cultural conditioning, as to be incapable of making wise choices and thus incapable of self-governance.”
Hard core lefttistist are one thing. Broad generalizations regarding 150,000,000 individuals are troubling. Who should govern these “dolts?” These unwashed, unwise, under educated? Certainly not themselves /s.
OM,
We live in a society were people are not responsible for the consequences of their actions. Contraception is widely available and inexpensive, in many cases free; but that does not decrease out of wedlock/unwanted pregnancies. All too often those seeking abortion are girls, not women. Yet, to attempt to address this issue in a life affirming manner is to be labeled sexist or racist.
Round and round the homicide machine circles unbroken. A society that promotes this death of the innocent machine is lost and without a moral anchor. The elevation of hrc and djt is a symptom of our disease.
I’ve read that with this ruling, midwives are more regulated than abortion clinics. What an upside down world…
Parker:
The SCOTUS appears more interested in maintaining it’s power to decide and “settle” issues that the people find contentious than any details of the actual cases at hand. The court majority does not care about any consequences except loss of the SCOTUS’s standing. They make up and discard rights. That is why they must be reigned in. Article V, Convention of States is a process to do that. Geoffrey seems to think that the people and the states cannot be trusted to follow that process and asserts that the people and the states are too ignorant, stupid, or worse and that civil war in the US is the only outcome conceivable or likely. Good luck with that.
“A society that promotes this death of the innocent machine is lost and without a moral anchor.” There is more to this society and country than the “progressives/democrats” and the majority of the SCOTUS.
I agree that hrc and djt are a foul manifestations of the current state of our society. That may be why polls show both to be viewed as “unappealing” by a majorities of respondents.
Lucifer is not going to allow one of his most profitable and powerful industries, the abortion magic of sacrificing life for profit, to be rendered inert so easily.
The whole point of Christianity and even Islam, is that humans are too weak to rule themselves. Thus they must either be told what to do, by a more perfect or virtuous power, or they must be transformed into an obedient vessel for a divine system.
The difference is who heads that system, in 1st AD Christendom it is Jesus and Jehovah/God, and in Islam, it’s a god that acts like Lucifer historically.
US Civil War II, to restate what I’ve already written years ago, is the most optimistic outcome, and the sooner it comes, the potentially better the future can become.
That’s because Lincoln could have refused to fight the last civil war or just gave up, and then you would have a totalitarian Slavery 2.0 system based on using political power, wealth, religious authority, social authority to create a eugenics based caste system that kept blacks and slaves under the thumb of the slave lords for centuries. The Southern slave lords were planning to spread Slavery 2.0 to Mexico, the US Territories, and perhaps even Canada once they got to it.
So you can avoid civil war, by agreeing to submit to the evil in your midst, but that’s about the only way to avoid it. The other way is to break them before 1860, but that’s nearly impossible due to the power gap.
This is to address why Civil War II in America, is a contentious subject, why some people are attempting to accelerate it, others are merely recognizing it as an option, while others refuse to consider it. As with the American war of independence, 30% were patriots and for independence, 30% were sitting on a fence neutral for peace, and 30% were British loyalists who refused to side with independence.
The people who refuse to consider it a war usually play a part in making that war inevitable. For example, the Southern states wrote in their secessionist documents all kinds of reasons, but none of them included justifying a war against tyranny. No, they were planning to be re-admitted to the Union, except now with more Democrats backing their slavery policy. It was their presumption that the North were too weak to wage war, spiritually and character wise, that caused slave aristocrats to do something even more stupid than usual.
A war can easily happen if one side underestimates the other’s power or willing to fight. The same war can also result from people who tried to stop it, such as Chamberlain’s peace policies. That his attempt to stop the war, but all it did was to convince Hitler that his time was now. Trying to stop a civil war using peace and talk, can also make that war inevitable, by presenting your side as weak and unwilling to fight.
But this is not something the masses are expected to know about. It’s not like they have ever had to think through or run a war simulation, whether in software, reality, or conceptual framework. To run a simulation requires going through all the decisions that led to the war and continue through with it, from all factions and sides. It’s different from reading about the result, from the future.
The system the Founding Fathers, under some sort of Divine Inspiration I suspect, produced for their descendants and progeny, was a republic or a system designed only for a morally righteous people. No other.
Consider the ramifications of that. It’s not about your Leftist rated Margaret Sanger like eugenics IQ.
Ymarsakar:
Nope, they designed the system with separations of powers trying to account for man’s innate flaws. Morally righteous people would be preferred, but when have there been many of them around, much less in government?