The Supreme Court recently handed down its opinion in June Medical Services, LLC v. Russo. The majority concluded that a Louisiana law requiring abortion clinics and providers to have admitting privileges to a hospital within 30 miles creates an undue burden on a women attempting to get an abortion, making it therefore unconstitutional. The plurality arrived at this decision by using a balancing test, attempting to balance the benefits of the law versus the burden it created. They concluded that this law provides essentially no benefit and must be tossed. Chief Justice Roberts, who concurred with the plurality, disagreed with the use of this test.
Roberts’s concurrence was focused on one issue: stare decisis. His decision to side with the majority was based on his desire to maintain stare decisis, particularly following the decision the court had made years earlier in Whole Women’s Health. Roberts saw that case and this one as practically the same, and even though he believed that Whole Women’s Health was wrongly decided, the practice of stare decisis required him to follow that decision.
The legal doctrine of stare decisis requires us, absent special circumstances, to treat like cases alike. 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.Roberts Concurrence at pg. 2
His adherence to stare decisis also led him to disagree with the majority in bringing in a balancing test. Rather, he said that the only test that Planned Parenthood v. Casey prescribed was looking for a “substantial obstacle.”
Justice Thomas’ dissent attacks the majority opinion in two ways. First, Thomas argued that under Article III, the plaintiffs don’t have standing and so he would have tossed the case for that reason alone. Alito’s dissent agrees on this point, further elaborating the lack of standing. Thomas’s second point is that the right to an abortion is not constitutionally based and should be eliminated altogether. The opposite of Roberts, Thomas argues for ignoring stare decisis entirely when it comes to abortions as he sees Roe as decided incorrectly.
Justices Gorsuch and Kavanaugh also filed separate dissents. Gorsuch’s dissent focused primarily on separation of powers. He argued the court is to review the constitutionality of a law, not its wisdom, and disagreed with the majority declaring the law at issue had no benefit to the public.
When facing such a challenge, too, this Court usually accepts that “the public interest has been declared in terms well-nigh conclusive” by the legislature’s adoption of the law—so we may review the law only for its constitutionality, not its wisdom. [citation omitted] Today, however, the plurality declares that the law before us holds no benefits for the public and bears too many social costs. All while sharing virtually nothing about the facts that led the legislature to conclude otherwise. The law might as well have fallen from the sky.Gorsuch dissent at pg. 2.
Kavanaugh filed a very shorter dissent, voicing his support of Alito’s dissent, and agreeing that the plaintiffs did not have standing in this case.
Written by GLLF’s Legal Intern, Mike Pflughoeft