The Supreme Court ruled 5-4, with Chief Justice John Roberts as the deciding vote, to strike down a Louisiana law that requires abortionists have hospital admitting privileges.

Roberts said he voted because he had to follow precedent.

What precedent is that?

The Louisiana law is similar to a Texas law SCOTUS struck down in a 2016 case (Whole Women’s Health v. Hellerstedt):

The majority opinion, written by Justice Stephen Breyer, noted that the Louisiana law is “almost word-for-word identical” to a Texas law the court ruled was unconstitutional in 2016’s Whole Woman’s Health v. Hellerstedt. A District Court had rejected the Louisiana law because of that precedent, but a court of appeals ruled otherwise.

“We have examined the extensive record carefully and conclude that it supports the District Court’s findings of fact,” Breyer wrote. “Those findings mirror those made in Whole Woman’s Health in every relevant respect and require the same result. We consequently hold that the Louisiana statute is unconstitutional.”

Breyer noted that the District Court found that the law “offers no significant health benefit” and that “conditions on admitting privileges common to hospitals throughout the State have made and will continue to make it impossible for abortion providers to obtain conforming privileges for reasons that have nothing to do with the State’s asserted interests in promoting women’s health and safety”

Roberts originally dissented in that case but ruled with the majority.

Roberts wrote today:

“The legal doctrine of stare decisis requires us, absent special circumstances, to treat like cases alike,” Roberts wrote in a concurring opinion. “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.”

Justice Clarence Thomas slammed the excuse of using precedents to rule today:

The plurality and THE CHIEF JUSTICE ultimately cast aside this jurisdictional barrier to conclude that Louisiana’s law is unconstitutional under our precedents. But those 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.

Thomas pointed out that “[T]he Constitution does not constrain the States’ ability to regulate or even prohibit abortion.” He continued:

This Court created the right to abortion based on an amorphous, unwritten right to privacy, which it grounded in the “legal fiction” of substantive due process, McDonald v. Chicago, 561 U. S. 742, 811 (2010) (THOMAS, J., concurring in part and concurring in judgment). As the origins of this jurisprudence readily demonstrate, the putative right to abortion is a creation that should be undone.

The Supreme Court ruled in Roe v Wade based on the 14th Amendment. But Thomas explained that SCOTUS “began its legal analysis by openly acknowledging that the Constitution’s text does not ‘mention any right to privacy.'”

Thomas stressed that “we exceed our constitutional authority whenever we ‘[Appl[y] demonstrably erroneous precedent instead of the relevant law’s text.'”


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