The Abortion Distortion

The Supreme Court’s most recent foray into abortion jurisprudence highlights what conservative critics call the “abortion distortion.” When the Court reviews abortion cases, left-leaning and moderate Justices throw out otherwise normal legal and judicial standards for the sake of preserving the Court-created structure of abortion rights at any cost. Nowhere is this funhouse mirror-like distortion more clearly seen than in Monday’s June Medical Services v. Russo decision.

In this case, the Court held that the state of Louisiana could not impose certain health and safety restrictions on abortion clinics—the same requirements applicable to ambulatory surgical centers. In his controlling plurality opinion, Justice Stephen Breyer held that these restrictions would lead to clinics closing, and that the burden on a woman’s liberty interest in abortion “outweighed” the health benefits the state sought, rendering the law unconstitutional.

This case and its outcome are almost identical to Breyer’s 2016 decision Whole Woman’s Health v. Hellerstedt. While Chief Justice John Roberts dissented from that 5-3 ruling, he concurred with the four liberal Justices to give them the victory in June Medical, thereby opposing his own former position.

We can see the abortion distortion in June Medical in several ways, starting with how courts review healthcare laws. In our constitutional system, public health regulation has always been a core function of state governments. As a result, courts review state healthcare laws—even when they are occasionally unhelpful or potentially harmful—with a broadly permissive level of discretion, and err on the side of letting the regulation stand.

Yet when it comes to abortion, the posture is completely different. Suddenly, this group of nine lawyers—not doctors or ethicists or elected legislators—adopts the nitpicking attitude of a medical-regulatory review board, critically scrutinizing and semi-metaphysically weighing the health benefits of regulation against the burden on obtaining abortions.

Almost no other medical field or private industry can avoid duly-passed safety laws simply because they allegedly cannot live up to them. The Supreme Court did not even allow California churches—which, unlike abortion clinics, can actually cite a passage of the Constitution’s text that explicitly protects their right to function without undue infringement—to prevail in their challenge to certain Newsom-mandated COVID-19 restrictions several weeks ago.

Yet in this case, the Supreme Court of the United States itself is willing to overturn a state law so some abortion doctors can put their businesses ahead of patient safety. Meanwhile, Louisiana’s elected lawmakers, including the Democratic legislator who wrote the bill and the Democratic governor who signed it, have their work undone by unelected judges.

The distortion also applies to Justice Breyer. Throughout his time on the Court, Stephen Breyer has taken a broadly liberal posture favoring government regulation of industry and healthcare. And yet here, he seeks to exclude abortion practitioners from such minimal requirements as having admitting privileges at a hospital within a 30-mile radius. Abortion is apparently the only industry that Stephen Breyer believes does not deserve vigorous health and safety oversight.

John Roberts is perhaps the most surprising victim of abortion distortion with his newfound exaltation of stare decisis, the notion that the Supreme Court should not overturn its prior precedents without sufficient reason. The Chief has rarely shown concern for overturning past decisions he thought were wrong. On public sector unions, campaign finance law, and other issues with huge real-world ramifications, Roberts repeatedly joined with narrow majorities to overturn everything from 7-year-old decisions to entrenched, decades-long precedents.

Yet somehow, for the 4-year-old Hellerstedt ruling, Roberts declared that stare decisis compelled him to uphold that decision, from which he himself dissented and with which he still disagrees. None of the usual reasons for stare decisis—longstanding precedent, stability in the law, reliance, predictability—clearly apply to a decision with such a short shelf life, supported by such a narrow 5-3 majority.

Roberts is clearly playing a political game. He may be reacting to mainstream voices on the left (like Senators Kamala Harris, Corey Booker, Elizabeth Warren, and Amy Klobuchar) who are open to adding seats, or “packing,” the Supreme Court, as they perceive it shifting right under President Trump. Roberts’ recent pushback against Trump-favored positions indicates this desire to protect the perceived “impartiality” and “respectability” of the Court against liberal critics—conservative critics be damned.

But playing politics is not his job. His job is to follow the rule of law, “to call balls and strikes, and not to pitch or bat.” Those are not my words—they are Justice Roberts’ own words from his 2005 confirmation hearings. He would do well to follow them, and to put down his funhouse mirror.

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