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  • Curt Levey

Today's SCOTUS Abortion Case is About Much More Than Abortion


Washington, D.C. -- The following is a statement by Committee for Justice president Curt Levey on today's Supreme Court argument in June Medical Services v. Russo, a challenge to the constitutionality of the Louisiana Unsafe Abortion Protection Act, which requires doctors who perform abortions to have local hospital admitting privileges:

"For many of the people and organizations closely watching this case, it is all about abortion. But there is just as much reason to watch this case for what it says about precedent and what it signals about the Court's newest justice, Brett Kavanaugh. Though not addressed here, there is an interesting standing issue as well.

At today's argument, eyes will inevitably be focused on Kavanaugh because it is not yet clear what sort of justice he will be. Conservatives hope that he will be a principled conservative jurist in the mold of Justices Thomas, Alito and Gorsuch. But they also worry that he might share some of the tendencies of Chief Justice John Roberts, a politically-minded compromiser.

Such tendencies would be most likely to emerge in a case like June Medical Services, involving the political sensitivity of the abortion issue and the potential of further angering the women's groups on the left that attacked Kavanaugh when he was nominated to the Supreme Court,

Eyes will also be on Roberts himself, not only because he is the Court's swing vote, but also because his past votes make his vote here hard to predict. Roberts voted to temporarily block the Louisiana abortion law last year, but also voted in dissent to uphold a similar Texas abortion law in 2016.

Court watchers will also be focused on precedent for at least a few reasons. One, opponents of the Louisiana law say the 2016 Texas case (Whole Woman’s Health v. Hellerstedt) is binding precedent. Two, under current Supreme Court precedent, the constitutionality of the Louisiana law hinges on whether it places an 'undue burden' on abortion rights, but there is wide disagreement about what that standard means. Three, supporters of largely unlimited abortion rights see enactment of the Louisiana law and a potential Supreme Court decision upholding it as part of a grand strategy to undermine and eventually overrule Roe. v. Wade.

While we do not believe there is any real chance that the Court, as currently constituted, would overrule Roe v. Wade, we would not be sorry to see it go for reasons that have nothing to do with abortion policy. Few constitutional precedents are as unsupported by anything in the Constitution. None are more naked examples of judges enacting their policy preferences instead of interpreting the law. While plausible Supreme Court interpretations of the Constitution should be binding, constitutional precedent that was created from whole cloth cannot be upheld for its own sake lest the rule of judges trumps the Constitution and the rule of law.

The 'undue burden' standard stands on even shakier ground. Not only does it flow from the erroneous Roe precedent (via the 1992 Planned Parenthood v. Casey decision), but it is inherently amorphous and malleable. The standard thus invites judges to interpret and apply it in light of their policy preferences.

Because Whole Woman’s Health relied heavily on the specific facts surrounding the Texas law, we believe the Louisiana law can easily be upheld without disturbing the Texas precedent. Nonetheless, the Court should feel free to overrule Whole Woman’s Health, because it rests on the faulty pillars of Roe and the 'undue burden' standard."



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