Posted on 05/19/2021 6:06:40 AM PDT by Kaslin
Chief Justice John Roberts and Justice Brett Kavanaugh, both nominated by Republican presidents, have both written absurd opinions on abortion laws.
The case of Dobbs v. Jackson Women's Health, which the Supreme Court will hear this year, could give them an opportunity to redeem themselves.
At issue, in this case, is a Mississippi law that bans most abortions after a baby's 15th gestational week. The question: Can a state prohibit doctors from killing unborn babies who are not yet old enough to survive outside the womb?
In the 2016 case of Whole Woman's Health v. Hellerstedt, Chief Justice John Roberts joined the minority of justices who opposed the court's decision to knock down less consequential abortion regulations that Texas had enacted. These regulations said that doctors performing abortions must "have active admitting privileges at a hospital" within 30 miles of the facility where they terminated babies and that any such facility must meet the state's "minimum standards ... for ambulatory surgical centers."
With Justice Antonin Scalia having passed away earlier that year, a then-eight-member court ruled 5 to 3 against this Texas law. Justice Stephen Breyer wrote the majority opinion, joined by Justices Ruth Bader Ginsburg, Sonia Sotomayor, Elena Kagan, and Anthony Kennedy (for whom future Justice Brett Kavanaugh had once clerked). Justices Clarence Thomas and Samuel Alito both wrote dissents. Roberts and Thomas joined Alito's dissent.
In his majority opinion in Whole Woman's Health, Breyer argued that the Texas regulations violated the "undue burden" test the Supreme Court had laid down in Planned Parenthood v. Casey. "An undue burden exists, and therefore a provision of law is invalid if its purpose or effect is to place a substantial obstacle in the path of a woman seeking an abortion before the fetus attains viability," the court had said in that 1992 opinion co-authored by Justices Sandra Day O'Connor, Anthony Kennedy, and David Souter.
In the 2016 case, Breyer, citing Planned Parenthood v. Casey, said of the two Texas abortion regulations: "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."
In 2020, the court took up the case of June Medical Services v. Russo. It challenged a Louisiana abortion law that -- mirroring the Texas law the court had knocked down in 2016 -- required abortionists to have admitting privileges at a hospital within 30 miles of where they performed abortions.
But the Supreme Court of 2020 was not the Supreme Court of 2016.
President Donald Trump had filled the vacancy created by the death of Justice Antonin Scalia with Neil Gorsuch. When Justice Anthony Kennedy retired, Trump had replaced him with his former clerk, Brett Kavanaugh.
Were there now enough votes to let the Louisiana law stand?
No. Why? Because, as this column has noted before, Roberts switched sides.
The court ruled 5 to 4 against the Louisiana regulation -- as Roberts concurred with Ginsburg, Breyer, Sotomayor, and Kagan in opposing it.
Roberts explained that in the four short years between 2016 and 2020, he had flipped on the issue because of his dedication to upholding Supreme Court precedents -- even when he believed they were wrong.
"I joined the dissent in Whole Woman's Health and continue to believe that the case was wrongly decided," Roberts wrote in a concurring opinion in June Medical Services. "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," said Roberts. "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."
Before Trump nominated Kavanaugh to the Supreme Court, Kavanaugh had served on the U.S. Court of Appeals for the District of Columbia when it heard the case of Garza v. Hargan. Here the question was whether a pregnant teenage alien caught trying to illegally enter this country has a right to an abortion in the United States.
Judge Karen Henderson, as this column had noted before, was critical of the Trump administration's approach to this untested proposition.
"Does an alien minor who attempts to enter the United States eight weeks pregnant -- and who is immediately apprehended and then in custody for 36 days between arriving and filing a federal suit -- have a constitutional right to an elective abortion?" wrote Henderson. "The government has inexplicably and wrongheadedly failed to take a position on that antecedent question. I say wrongheadedly because at least to me the answer is plainly -- and easily -- no."
Kavanaugh, however, was more understanding.
He conceded that the Supreme Court had not ruled on a similar case before. "To be sure," he said, "this case presents a new situation not yet directly confronted by the Supreme Court."
But he also conceded that under his reading of the precedents, an alien teen did have a right to an abortion here. "In sum," he said. "under the Government's arguments in this case and the Supreme Court's precedents, the unlawful immigrant minor is assumed to have a right under precedent to an abortion."
Now Mississippi has said you cannot kill an unborn child after 15 weeks of gestation. Will Roberts and Kavanaugh say they have to stand by the wrongly decided Roe v. Wade and Planned Parenthood v. Casey -- because they are precedents?
Or will they stand on principle -- and the Constitution itself -- and let Mississippi and other states protect the right to life of the innocent unborn?
2B or not 2B
I do not think so.
Roberts is a lost cause, IMO.
I hope Kavanuagh remembers which party falsely accused him of sexual assault and which party stood by him. But I’m not optimistic.
Kavanaugh is a possibility, though.
Given the recent Supreme Court decisions in many cases where they refused to take the case, I’m surprised they took this one...
Personally I don’t think they will overturn Roe v Wade, but might allow some severe restrictions but overall it will still be legal under certain circumstances...
I would be shocked if they threw out the entire ruling in Roe v Wade, if they do look for the left to actually start a real insurrection, which is precisely why the court will leave it alone...
Roberts is a lost cause, IMO.
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All the Catholics on the Court are lost causes because their decisions will perfectly reflect the hypocrisy of their Church’s hierarchy, especially regarding the issue of abortion.
Once a justice is compromised, their path is set. Roberts is an example. There is no going back, Kavanaugh will find out soon enough.
The Supreme Court will almost never do anything that would upset more than half the population.
Yup, Thomas and Alito are definitely “lost causes” by virtue of being Catholics, and will never vote the way we want. We need more good loyal protestant judges like John Paul Stevens. Oh wait...
I don’t think he will “grow” in office and become more liberal, I think he was never that conservative in the first place. That’s what happens when you select judges on the theory that “so-and-so claims to be an Originalist and will therefore be awesome regardless of their background or past track record”
They will do as directed by their masters.
I hate predict heartbreaking failure and betrayal, but gut prediction is that this but the pro-life law will be struck down 5-4 with the following breakdown:
Majority:
Breyer
Kagan
Sotamayor
Roberts (writing the majority opinion, citing stare decisis)
Kavanaugh
Minority:
Thomas (writing a withering dissent)
Alito
Gorsuch
Barrett
Concur
Traitor Roberts is irredeemable.
So I would say a 6-3 ruling at this point (with Alito, Thomas, and Barrett dissenting) Possible 5-4 if Roberts surprises us and does the right thing (voting with Alito and Thomas, knowing his vote won't change the outcome), which I give a 40% chance of happening.
Yup, Thomas and Alito are definitely “lost causes” by virtue of being Catholics, and will never vote the way we want. We need more good loyal protestant judges like John Paul Stevens. Oh wait...
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You’re right of course. It was an ignorant statement and I’m embarrassed that I posted it.
Stare decisis is a stupid doctrine that ignores the precedent that supersedes all others:
The Constitution.
I believe you are right in every respect with the caveat that I hope Kavanaugh and Gorsuch will be on the right side though I do not predict that that will be the case.
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