Supreme Court Justice Neil Gorsuch’s dissent Monday in a landmark abortion case was less about abortion than one might initially imagine. It was really about how judges do their jobs.
Supreme Court Justice Neil Gorsuch’s dissent Monday in a landmark abortion case was less about abortion than one might initially imagine. It was really about how judges do their jobs.
“In truth, Roe v. Wade (1973) isn’t even at issue here,” he wrote. “The real question we face concerns our willingness to follow the traditional constraints of the judicial process when a case touching on abortion enters the courtroom.”
In other words, stronger constraints by judges would have allowed the Louisiana law to stand. The law required abortion providers to hold hospital admitting privileges.
Gorsuch’s argument is a familiar one. Basically, it is that the court is, in his view, substituting its own views for that of the legislature, and that the court should not be functioning as such. He also accused the court of disregarding its own procedures and of failing to pound out a workable rule for courts to follow. In essence, that means issues like this will roll inevitably uphill to the Supreme Court time and time again.
“Today, however, the plurality declares that the law before us holds no benefits for the public and bears too many social costs,” Gorsuch said. “All while sharing virtually nothing about the facts that leg the legislature to conclude otherwise.”
“The law might as well have fallen from the sky,” Gorsuch said.
The underlying issue was a Louisiana law, Act 620, which required “abortion providers to hold admitting privileges at a hospital within 30 miles of the clinic where they perform abortions,” was at issue. The plurality of justices (Breyer, Ginsburg, Sotomayor, and Kagan, with Roberts concurring with the judgment) ruled ultimately that the admitting requirement should fall.
Gorsuch then engaged in a lengthy recitation of all the reasons Louisiana passed the law. He said similar laws are in place for “relatively low-risk procedures like colonoscopies, Lasik eye surgeries, and steroid injections at ambulatory surgical centers.” He said “extensive hearings” had been held; experts said admission requirements would result in “safer abortion treatment.
