Abandoning any semblance of consistency, the Supreme Court voted 5-3 today in Whole Women’s Health v. Hellerstedt to strike down regulations of abortion facilities that would have provided the same safety for patients as other ambulatory surgery facilities. Justice Breyer wrote for the court’s liberals and Justice Kennedy, with Justice Ginsburg writing a separate concurring opinion. Justice Thomas wrote a dissent for himself, while Justice Alito wrote a separate dissent joined by the Chief and Justice Thomas.
The majority opinion is run-of-the-mill Abortion Distortion, with the majority gutting res judicata to get to the plaintiffs’ claims and ignoring a severability clause so it can strike down the whole law. Breyer even brushes aside the Kermit Gosnell disaster as irrelevant to Texas’s need for regulation:
Gosnell’s behavior was terribly wrong. But there is no reason to believe that an extra layer of regulation would have affected that behavior. Determined wrongdoers, already ignoring existing statutes and safety measures, are unlikely to be convinced to adopt safe practices by a new overlay of regulations.
Does anyone think that the liberal justices would buy that argument in the context of gun control? “The Orlando/Sandy Hook/Fort Hood/etc. shooter’s behavior was terribly wrong. But there is no reason to believe that an extra layer of regulation would have affected that behavior. Determined wrongdoers, already ignoring existing statutes and safety measures, are unlikely to be convinced to adopt safe practices by a new overlay of regulations.” And (as Thomas’s dissent notes), the Second Amendment is actually in the Constitution, rather than emanating from some penumbra. The majority’s reasoning accords just as well with “The corrupt politician’s behavior was terribly wrong, but there is no reason to assume additional campaign finance regulations would have affected it.”
Justice Ginsburg’s two-page concurrence may set the record for highest fallacy to page ratio. Take note of this whopper (citations omitted):
In truth, “complications from an abortion are both rare and rarely dangerous.” Many medical procedures, including childbirth, are far more dangerous to patients, yet are not subject to ambulatory surgical-center or hospital admitting-privileges requirements. Given those realities, it is beyond rational belief that H. B. 2 could genuinely protect the health of women, and certain that the law “would simply make it more difficult for them to obtain abortions.”
Her reasoning is thus: Abortion complications are rare, and the state doesn’t regulate all procedures that have similar risks; therefore these regulations can’t possibly improve woman’s health. Think about that for a moment, though. Would she really say that episodes of food poisoning are rare and the state doesn’t regulate potlucks, so health regulations of restaurants can’t improve health?
Justice Thomas’s dissent is a treatise on Abortion Distortion. He savages the whole notion of tiers of scrutiny (internal quotations omitted):
The Constitution does not prescribe tiers of scrutiny. The three basic tiers— “rational basis,” intermediate, and strict scrutiny—are no more scientific than their names suggest, and a further element of randomness is added by the fact that it is largely up to us which test will be applied in each case.
He also ties this case into last week’s decision in Fisher II:
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. All the State apparently needs to show to survive strict scrutiny is a list of aspirational educational goals (such as the “cultivat[ion of] a set of leaders with legitimacy in the eyes of the citizenry”) and a “reasoned, principled explanation” for why it is pursuing them—then this Court defers. Yet the same State gets no deference under the undue-burden test, despite producing evidence that abortion safety, one rationale for Texas’ law, is medically debated. Likewise, it is now easier for the government to restrict judicial candidates’ campaign speech than for the Government to define marriage—even though the former is subject to strict scrutiny and the latter was supposedly subject to some form of rational-basis review.
Justice Thomas sums it up well:
Unless the Court abides by one set of rules to adjudicate constitutional rights, it will continue reducing constitutional law to policy-driven value judgments until the last shreds of its legitimacy disappear.