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.<\/b>
\nSupreme Court Justice Neil Gorsuch\u2019s 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.
\u201cIn truth, Roe v. Wade (1973) isn\u2019t even at issue here,\u201d he wrote. \u201cThe 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.\u201d
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\u2019s 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.
\u201cToday, however, the plurality declares that the law before us holds no benefits for the public and bears too many social costs,\u201d Gorsuch said. \u201cAll while sharing virtually nothing about the facts that leg the legislature to conclude otherwise.\u201d
\u201cThe law might as well have fallen from the sky,\u201d Gorsuch said.
The underlying issue was a Louisiana law, Act 620, which required \u201cabortion providers to hold admitting privileges at a hospital within 30 miles of the clinic where they perform abortions,\u201d 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 \u201crelatively low-risk procedures like colonoscopies, Lasik eye surgeries, and steroid injections at ambulatory surgical centers.\u201d He said \u201cextensive hearings\u201d had been held; experts said admission requirements would result in \u201csafer abortion treatment.\u201d Louisiana abortion clinics also did not undertake the same \u201crigorous credentialing processes\u201d that hospitals require, he said; they have also \u201cfailed to perform background checks.\u201d Some clinics have even \u201chired physicians whose specialties were unrelated to abortion\u2014including a radiologist and an ophthalmologist.\u201d One abortion provider lost \u201cadmitting privileges following a patient\u2019s death.\u201d Abortion providers also racked up \u201csafety and ethical violations\u201d which \u201cincluded failing to use sterile equipment,\u201d \u201cfailing to monitor patients\u2019 vital signs,\u201d and \u201cneglecting to obtain informed consent.\u201d
The descriptions went downhill from there.
\u201cOne clinic used single-use hoses and tubes on multiple patients, and the solution needed to sterilize instruments was changed so infrequently that it often had pieces of tissue floating in it,\u201d Gorsuch wrote. \u201cOne woman testified that, while she was hemorrhaging, her abortion provider told her, \u2018You\u2019re on your own. Get out.\u2019 Eventually, the woman went to a hospital where an emergency room physician removed fetal body parts that the abortion provider had left in her body.\u201d
Other such examples followed.
\u201cAfter overlooking so many facts and the deference owed to the legislative process,\u201d Gorsuch wrote, \u201ctoday\u2019s decision misapplies many of the rules that normally constrain the judicial process.\u201d Among them, he opined were standing (who can sue; in this case, it was the abortion providers, not those seeking abortions, who sued) and facial challenges (attacking a law on its face is \u201cdeliberately difficult,\u201d here, the plurality allowed it).
As to the latter, \u201c[r]ather than requiring that a law be unconstitutional in all its applications to fall, today\u2019s decision requires that Louisiana\u2019s law be constitutional in all its applications to stand,\u201d Gorsuch said. Gorsuch also said the court mishandled the legal standard necessary for an injunction.
\u201cRather than follow these rules, today\u2019s decision proceeds to accept one speculative proposition after another to arrive at what can only be called a worst case scenario,\u201d he said.
Then Gorsuch accused abortion doctors of being too lazy to take easy steps to comply with the law. One doctor didn\u2019t obtain admitting privileges because he didn\u2019t take the \u201csole remaining step\u201d of finding another \u201cdoctor willing to cover for him.\u201d Another doctor only asked one other doctor. Another stopped the application process when a hospital asked him or her for more information.
\u201cMaybe these physicians didn\u2019t feel it was worth putting in much effort,\u201d Gorsuch concluded, \u201cgiven their chances of prevailing in this lawsuit.\u201d Gorsuch thus assumed that Supreme Court litigation was somehow easier than the steps he said were necessary for the doctors to comply with the law.
(Breyer, writing for the plurality, said Gorsuch was making \u201cnot a legal argument at all,\u201d but instead was finding \u201csimply another way of saying that the doctors acted in bad faith.\u201d Breyer said the district court \u201cmonitor[ed] the doctors\u2019 efforts for a year and a half\u201d and \u201cfound otherwise.\u201d)
Gorsuch said that the only \u201csilver lining\u201d in the plurality opinion was that hospitals could amend their admitting privileges rules to allow abortion providers better access \u2014 thus rendering the legal ruling issue subject to change.
Gorsuch further articulated a fear that the legal standard adopted by the high court\u2019s plurality would be hard for lower courts to predictably apply. This fear, he said, was rooted in a supposition that lower court judges would apply the law by \u201cstraying into the political fray\u201d rather than by applying a neutral test (such as that employed in First Amendment analyses).
The plurality\u2019s ruling, he said, encouraged a what he referred to as \u201ca hunter\u2019s stew: [t]hrow in anything that looks interesting, stir, and season to taste.\u201d Courts cannot merely balance benefits and burdens, he said, and that\u2019s what he fears happening in future abortions rulings: a rush back to the Supreme Court every time the issue of abortion enters the courtroom, because then, only the Supreme Court\u2019s \u201cbalance\u201d will matter in the end.
\u201cMissing here is exactly what judges usually depend on when asked to make tough calls: an administrable legal rule to follow, a neutral principle, something outside themselves to guide their decision,\u201d he said.
Read the Gorsuch dissent below:
SCOTUS Abortion Case Decision by Law&Crime on Scribd
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