Supreme Court Strikes Down Texas Abortion Law

The Supreme Court has handed down a major abortion rights ruling that reaffirms the central reasoning of Roe v. Wade and Planned Parenthood v. Casey, and makes it less likely that Roe will ever be overturned.

abortion-law

In a ruling that is likely to have implications far beyond the borders of Texas, the Supreme Court today struck down the Lone Star State’s latest attempt to limit the availability of abortion by using the state’s authority to regulate the practice of medicine to make it virtually impossible for abortion clinics to operate in the state:

WASHINGTON — The Supreme Court on Monday struck down parts of a restrictive Texas law that could have reduced the number of abortion clinics in the state to about 10 from what was once a high of roughly 40.

The 5-to-3 decision was the court’s most sweeping statement on abortion rights since Planned Parenthood v. Casey in 1992. It applied a skeptical and exacting version of that decision’s “undue burden” standard to find that the restrictions in Texas went too far.

The decision on Monday means that similar restrictions in other states are most likely also unconstitutional, and it imperils many other kinds of restrictions on abortion.

Justice Stephen G. Breyer wrote the majority opinion, joined by Justices Anthony M. Kennedy, Ruth Bader Ginsburg, Sonia Sotomayor and Elena Kagan. Chief Justice John G. Roberts Jr. and Justices Clarence Thomas and Samuel A. Alito Jr. dissented.

The decision concerned two parts of a Texas law that imposed strict requirements on abortion providers. It was passed by the Republican-dominated Texas Legislature and signed into law in July 2013 by Rick Perry, the governor at the time.

One part of the law requires all clinics in the state to meet the standards for ambulatory surgical centers, including regulations concerning buildings, equipment and staffing. The other requires doctors performing abortions to have admitting privileges at a nearby hospital.

“We conclude,” Justice Breyer wrote, “that neither of these provisions offers medical benefits sufficient to justify the burdens upon access that each imposes. Each places a substantial obstacle in the path of women seeking a previability abortion, each constitutes an undue burden on abortion access, and each violates the federal Constitution.”

Last June, the United States Court of Appeals for the Fifth Circuit, in New Orleans, largely upheld the contested provisions of the Texas law, saying it had to accept lawmakers’ assertions about the health benefits of abortion restrictions. The appeals court ruled that the law, with minor exceptions, did not place an undue burden on the right to abortion.

Justice Breyer said the appeals court’s approach was at odds with the proper application of the undue-burden standard. The Casey decision, he said, “requires that courts consider the burdens a law imposes on abortion access together with the benefits those laws confer.”

In dissent, Justice Thomas said the majority opinion “reimagines the undue-burden standard,” creating a “benefits-and-burdens balancing test.” He said courts should resolve conflicting positions by deferring to legislatures.

“Today’s opinion,” Justice Thomas wrote, “does resemble Casey in one respect: After disregarding significant aspects of the court’s prior jurisprudence, the majority applies the undue-burden standard in a way that will surely mystify lower courts for years to come.”

The majority opinion considered whether the claimed benefits of the restrictions outweighed the burdens they placed on a constitutional right. Justice Breyer wrote that there was no evidence that the admitting-privileges requirement “would have helped even one woman obtain better treatment.”

At the same time, he wrote, there was good evidence that the admitting-privileges requirement caused the number of abortion clinics in Texas to drop from 40 to 20.

In a second dissent, Justice Alito, joined by Chief Justice Roberts and Justice Thomas, said the causal link between the law and the closures was unproven. Withdrawal of state funds, a decline in the demand for abortions and doctors’ retirements may have played a role, Justice Alito wrote.

Justice Breyer wrote that the requirement that abortion clinics meet the demanding and elaborate standards for ambulatory surgical centers also did more harm than good.

“Abortions taking place in an abortion facility are safe — indeed, safer than numerous procedures that take place outside hospitals and to which Texas does not apply its surgical-center requirements,” he wrote, reviewing the evidence. “Nationwide, childbirth is 14 times more likely than abortion to result in death, but Texas law allows a midwife to oversee childbirth in the patient’s own home.”

Today’s case was the first time the Supreme Court has issued a major ruling dealing with abortion and abortion rights in nine years, and it appears to solidify the case law that has developed ever since 1973’s Roe v. Wade even further into the law in a way that makes it hard to believe that the Court will reverse itself on this issue at any time in the foreseeable future. That last abortion case was Gonzalez v. Carhart, which challenged a law passed by Congress imposing a nationwide ban on so-called “partial birth” abortions. Notwithstanding the fact that it is entirely unclear which part of the Constitution actually gives Congress the power to legislate on this issue, the Court upheld the law a proper exercise of Congressional authority. Prior to Gonzalez, the Court had ruled in the 2000 case  Stenberg v. Carhart that a similar ”partial birth abortion” passed into law was- unconstitutional. These two cases dealt with a limited number of situations, though, and the laws at issue did not purport to touch upon, or seek to limit abortion rights early in pregnancy. The last major case that dealt the issues flowing from Roe v. Wade, though, was Planned Parenthood v. Casey, which came down all the way back in 1992. In Casey the Court clarified the case law that had flowed from at least to some extent, and held that regulations imposed by the state that impact the right to abortion will be struck down if they impose an ‘undue burden’ on the ability of women to obtain an abortion. Given that standard, it became far more difficult for pro-life forces to use state law to restrict access to abortion and, thus, something of a stalemate developed that lasted for quite some time. As a result,  litigation related to abortion regulations were largely relegated to the Federal District Courts and the Circuit Courts of Appeal, but there had largely been a stalemate on the issue for the better part of the decade in that the legal issues after Casey became more complex and the political will for further restrictions on abortion didn’t really exist for quite some time.

In recent years. though, and especially beginning with the Republican Party’s success in capturing state legislatures nationwide in 2010 and later years, the abortion battle took on a new direction. Prompted by national anti-abortion groups, state legislatures across the country, and especially in the South, began passing laws that purported to be aimed at increasing the ‘safety’ of facilities where abortions were provided but which actually had the impact of imposing regulations so restrictive that it made it next to impossible for many clinics to stay open. The actual motivation behind these laws was blindingly obvious, though, and in some cases legislators didn’t even both to hide the true nature of their motives in passing the new laws by openly acknowledging that their goal was to prevent clinics from operating at all not out of any real concern that they were being operated in a medically safe manner. This Texas law was among the most restrictive of these new types of laws, and the Court’s opinion clearly found that the restrictions that the state passed in this case were exactly the kind of ‘undue burden’ that Casey prohibited. As a result, either the law could not stand or Casey itself, which is really nothing more than the logical extension of Roe v. Wade and appears to confirm that Roe is likely to remain good law for some time to come.

The most immediate impact of the Court’s decision in this case is that it is likely to be considered a significant set back for abortion opponents going forward. For a time after Roe was decided, it did seem as though we could see a day when that case was overturned either in name or effectively. The Rehnquist Court did manage to do that to some extent in 1989’s Webster v. Reproductive Health Services and nearly did so in Casey before Justice Kennedy switched sides and ended up authoring an historic opinion that reaffirmed Roe nearly 20 years after it was handed down and set up the ‘undue burden’ test that the Texas law failed today. In reaching that conclusion, the Court has reaffirmed not only the decision in Casey but also the central logic of Roe itself and the question of when and how the state can restrict a woman’s ability to have access to an abortion. This arguably sends the signal that the forty-three year old precedent in Roe is unlikely to be kicked to the curb by this Court or, depending on the election results, any Court in the foreseeable future. Indeed, thanks to concepts such as stare decisis the longer Roe remains good law the less likely it is that the Court will overturn the cases central holding and return the nation to the status quo that existed prior to January 1973

Florida State Law Professor Mary Zieglar comments at SCOTUSBlog:

For now, the majority’s approach means that trial courts will have a major say in the fate of abortion regulations. Today’s decision also offers the beginnings of a road map for making a factual case under the undue-burden test. Expert testimony, depositions, and peer-reviewed studies can all be enough to establish an undue burden.

In clarifying what an undue burden is, today’s decision will also likely begin a new chapter in the history of pro-life incrementalism. As I’ve argued elsewhere, abortion opponents have not always aimed their fire primarily at Roe. Indeed, for much of the 1970s, movement members prioritized a fetal-protective constitutional amendment that would have protected a right to life coast to coast. Only after that strategy seemed out of reach did pro-lifers adopt the strategy of chipping away at Roe that now seems so familiar.

This case will not spell the end of pro-life incrementalism; far from it. But the Court’s decision ensures that both sides will have to collect better proof of whether abortion hurts or helps women. It seems to me that this cannot be a bad thing. Pro-choice Americans strongly believe that without access to safe and legal abortion, women will be less healthy, in control of their lives, or able to participate equally in society. And for many pro-lifers, the argument that abortion hurts women is much more than a cynical ploy. Today’s opinion means that those on both sides will have to make their case to the courts and to the public. It will no longer be enough for legislatures to claim that they have women’s best interests in mind.

This should not be an unpopular outcome. As Reva Siegel, Robert Post, Neal Devins, and others have argued, Casey closely tracks public opinion on abortion. That is: Casey reflects that abortion is a genuinely hard issue for most Americans, who can see real value in the constitutional claims made by each opposing social movement. And it seems to me that this outcome best captures the spirit ofCasey. In 1992, the Court’s decision required respect for women’s liberty and the dignity of fetal life. This case goes a step further in guaranteeing that those values receive more than lip service. A meaningful “undue burden” test should do nothing less.

As Tara Culp-Ressler notes, this decision is likely to have a significant impact across the country, and it’s easy to see why. Laws such as the one that was before the Court in this case are on the books in twenty-five other states. While many of them are in one stage or another of Federal Court review, they have yet to proceed as far as the Texas law has. This ruling means that their legal journey is effectively at an an end, and that those laws that have not been challenged as of yet are likely to find themselves being challenged as unconstitutional as well. The outcome of those cases would seem to be rather obvious. This means that a significant legislative strategy of the anti-abortion/pro-life movement is now cut off, leaving them searching for a new strategy to try to restrict access to abortion while not running afoul of the law. Today, the Supreme Court made clear just how difficult that is going to be. This isn’t going to be the end of the road for the abortion debate, of course, but it is likely to make any effort to restrict abortion access in a way that does not run afoul of Roe and Casey far more difficult. That, combined with a future that seems likely to lead to a Supreme Court highly unlikely to overturn either of those cases, suggests that Ian Millhiser is correct when he calls this ruling an “unmitigated disaster” for the pro-life movement.

Here’s the opinion:

Whole Women’s Health v. Hellerstedt Et Al by Doug Mataconis

FILED UNDER: Law and the Courts, US Politics, , , ,
Doug Mataconis
About Doug Mataconis
Doug holds a B.A. in Political Science from Rutgers University and J.D. from George Mason University School of Law. He joined the staff of OTB in May 2010. Before joining OTB, he wrote at Below The BeltwayThe Liberty Papers, and United Liberty Follow Doug on Twitter | Facebook

Comments

  1. Jack says:

    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. Regardless, Gosnell’s deplorable crimes could escape detection only because his facility went uninspected for more than 15 years. Id., at 20. – Justice Stephen Breyer

    Very good point. It’s good to know Breyer, and presumably the majority that agreed with him, will strike down future efforts at gun control.




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  2. DrDaveT says:

    In a second dissent, Justice Alito, joined by Chief Justice Roberts and Justice Thomas, said the causal link between the law and the closures was unproven. Withdrawal of state funds, a decline in the demand for abortions and doctors’ retirements may have played a role, Justice Alito wrote.

    Stunning. There’s a lot of evidence that these people aren’t flat-out stupid, so this has to be either prevarication or jaw-dropping ignorance of reality. Any bets?




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  3. Modulo Myself says:

    @DrDaveT:

    They are nasty abusive pricks who enjoy laws that punish women for being pregnant and sanctimoniously lying about the effects of these laws.




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  4. Lit3Bolt says:

    @DrDaveT:

    I’m surprised Alito didn’t include an explosion in the stork population or a bumper crop of cabbage patches as possible reasons as well.

    Of course, they can’t write “My personal faith and relationship with the Catholic Church dictates my rulings on this issue,” so they come up with disingenuous BS with a bare fig leaf of legal reasoning.




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  5. Scott says:

    Indeed, thanks to concepts such as stare decisis the longer Roe remains good law the less likely it is that the Court will overturn the cases central holding and return the nation to the status quo that existed prior to January 1973

    With the increasing politization of the judiciary, I am not confident the concept of stare decisis has as much power or relevancy in this day and age.




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  6. grumpy realist says:

    @Jack: Why?

    I find it ironic that the same loudmouths who claim to be “pro-life” seem to be perfectly fine with a toddler playing around with a gun and killing someone. Because that’s oops, just a price we have to pay for our freedoms.




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  7. Jack says:

    @grumpy realist: I find it ironic that the same loudmouths who claim to be “pro-death” seem have problems with a toddler playing around with a gun and killing someone. Because that’s oops, just a price we have to pay for our freedoms.




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  8. Pete S says:

    @grumpy realist: It is shocking how soon after a baby is born that “pro-life” changes to massive indifference.




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  9. steve s says:

    Whole Woman’s Health v. Hellerstedt is a beat down of Texas’ anti-abortion law HB 2. Justice Stephen Breyer’s majority opinion piles facts upon evidence upon statistics to demolish Texas’ supposed justification for the law. At one point, Breyer even damns the law with words uttered by Texas’ own attorney. By the end of the opinion, it is surprising that Breyer did not finish with the two words “HULK SMASH!”

    -ian millhiser




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  10. steve s says:

    @DrDaveT: “Stunning. There’s a lot of evidence that these people aren’t flat-out stupid, so this has to be either prevarication or jaw-dropping ignorance of reality. Any bets?”

    They’re modern conservatives, so disingenuous lying is kinda part-and-parcel.




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  11. Guarneri says:

    so does this mean that regulation of dairies is a thinly disguised attempt to prevent the constitutional right to produce milk?

    But fear not. We still have well regulated sugary drinks going for us……




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  12. steve s says:

    I find it ironic that the same loudmouths who claim to be “pro-life” seem to be perfectly fine with a toddler playing around with a gun and killing someone.

    What “pro-lifers” do will not make sense if you think they’re really against abortion. Like that program in KS or CO or wherever that cut abortion by 40% and the “Pro-Lifers” were hell-bent on closing it. If you switch the analytical framework to “suppose they’re really shitty people who like being extra shitty to women and minorities”, basically all of what they do will make sense.




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  13. James Pearce says:

    @Jack:

    I find it ironic that the same loudmouths who claim to be “pro-death” seem have problems with a toddler playing around with a gun and killing someone.

    Speaking of toddlers…..

    Isn’t it a bit childish to expect other people to hold the same beliefs on two different issues with their own complexities and compromises?




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  14. Jack says:

    @steve s:

    If you switch the analytical framework to “suppose they’re really shitty people who like being extra shitty to women and minorities”, basically all of what they do will make sense.

    You mean people like…oh, just off the top of my head…Margaret Sanger?

    The same person who said, “[We should] apply a stern and rigid policy of sterilization and segregation to that grade of population whose progeny is tainted, or whose inheritance is such that objectionable traits may be transmitted to offspring.”

    and

    “Give dysgenic groups [people with “bad genes”] in our population their choice of segregation or [compulsory] sterilization.”

    and

    “Birth control must lead ultimately to a cleaner race.”

    “We should hire three or four colored ministers, preferably with social-service backgrounds, and with engaging personalities. The most successful educational approach to the Negro is through a religious appeal. We don’t want the word to go out that we want to exterminate the Negro population, and the minister is the man who can straighten out that idea if it ever occurs to any of their more rebellious members.”

    And developed the “Plan for Peace” which states:

    Article 1. The purpose of the American Baby Code shall be to provide for a better distribution of babies… and to protect society against the propagation and increase of the unfit.
    Article 4. No woman shall have the legal right to bear a child, and no man shall have the right to become a father, without a permit…
    Article 6. No permit for parenthood shall be valid for more than one birth.

    Yeah, pretty shitty.




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  15. Jack says:

    @James Pearce:

    Isn’t it a bit childish to expect other people to hold the same beliefs on two different issues with their own complexities and compromises?

    Isn’t it a bit disingenuous to believe that these justices shouldn’t be able to apply the same thought pattern to more than one idea? Either it’s a right or it isn’t.

    Then again. Liberal judges do have difficulty walking and chewing gum at the same time, so…




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  16. Moosebreath says:

    @James Pearce:

    Not to mention that, saving a few vampires, very few people actually claim that they are “pro-death”.




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  17. steve s says:

    And when Garland–or even better, a more liberal Hillary appointee–takes the bench in 2017, court-watching’s going to get even more fun for some of us! I can’t wait!




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  18. James Pearce says:

    @Jack:

    Isn’t it a bit disingenuous to believe that these justices shouldn’t be able to apply the same thought pattern to more than one idea? Either it’s a right or it isn’t.

    I don’t see why it’s “disingenuous” to consider each issue based on its own merits.

    What you’re talking about is not a “thought pattern.” That’s the lack of thought. Like, you don’t need to figure out what you believe on abortion or guns. Just take your beliefs on land use policy (or whatever) and plug them in.

    That’s no way to go through life.




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  19. James Pearce says:

    Also:

    @Jack:

    You mean people like…oh, just off the top of my head…Margaret Sanger?

    I, for one, am not surprised that someone who was born in the Victorian age and died 50 years ago had several antiquated beliefs. Wait till you hear that many of the Founding Fathers were slave owners….




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  20. steve s says:

    lol.




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  21. DrDaveT says:

    @Guarneri:

    so does this mean that regulation of dairies is a thinly disguised attempt to prevent the constitutional right to produce milk?

    It is if the ‘regulation’ is to require them to adhere to the same security and cleanliness standards as nuclear weapon assembly facilities.




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  22. steve s says:

    it’s almost like some people want to look dumb.




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  23. gVOR08 says:

    @Guarneri:

    so does this mean that regulation of dairies is a thinly disguised attempt to prevent the constitutional right to produce milk?

    If the legislators in question were lactose intolerant and had a long, public history of anti-milk statements and a long history of anti-milk legislation, why yes, it would be. Especially if expert testimony made it clear the proposed regulations would not improve sanitation or have any other positive effect.




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  24. Ben in RI says:

    @Jack:

    There is nothing akin to the skipped Gosnell inspections in the gun control debate. Unless you are insinuating that we should have regular inspections of gun owner’s handling safety and storage of their guns, in which case, now we’re talking.




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  25. HarvardLaw92 says:

    @Ben in RI:

    I’m betting Jack hasn’t seen the gun control decision which was handed down today yet. Maybe it takes his forums a bit to get spun up.




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  26. steve s says:

    In the middle of all the excitement about the Supreme Court’s big abortion decision on Monday, the court handed down another, smaller, win for liberals: It ruled that those convicted of domestic violence offenses can be barred by federal law from buying or owning a gun for life — even if the conviction only demonstrates that someone acted recklessly violent, as opposed to intentionally or knowingly violent, toward a partner or spouse.

    Don’t worry HL92, before the day is over, the NRA is going to be telling Jack and Jenos what a terrible communist assault on freedom and the constitution this is.




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  27. steve s says:

    BTW HarvardLaw92, if Hillary wins in November, what’s your guess on whether we’ll get Garland or someone else?




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  28. HarvardLaw92 says:

    @steve s:

    I think that depends on whether or not we retake the Senate. if we do, Republicans will be falling over themselves trying to get his nomination moving in the lame duck session. It hinges on how receptive Senate Dems are at that point to allowing it. I suspect they won’t be, but stranger things have happened. If they are, he’ll be confirmed.

    if he’s not confirmed and his nomination dies with this Congress, I don’t see Clinton renominating him.




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  29. Hal_10000 says:

    Ah, abortion decision day. That day when we see how reasonable “our side” can be in the Culture War. Let’s only attribute the basest motives to the Pro-Life side. Even Alito and Roberts, who sent the law back for further review instead of upholding it, must be dragged out to the pillories.

    I can’t imagine why things have gotten so partisan.

    In any case, the decision was fairly straight-forward. Texas could not demonstrate that the regulations would result in any increase in safety for women. I approve of the Court’s logic here. I just wish they would apply it to more situations were regulations are passed for “safety” who real intent is to either effectively outlaw something or restrict a market to monied interests. But I expect people’s opinions will reverse in those cases.

    @steve s:

    Like that program in KS or CO or wherever that cut abortion by 40% and the “Pro-Lifers” were hell-bent on closing i

    Sorry, but this is a pet peeve of mine because to hell with junk science even when it’s my side. What your talking about is Colorado’s program of giving free IUD’s to young women. I was somewhat in favor of that program but the idea that the CO program cut abortion 40% is a myth. First off, it was a supposed drop in teen pregnancies. Second, the entire nation saw a huge drop in teen pregnancies at the same time, including very red states like Virginia and Georgia. Claiming the Colorado IUD program dropped teen pregnancies 40% is the ultimate post facto reasoning.




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  30. An Interested Party says:

    Ah, abortion decision day. That day when we see how reasonable “our side” can be in the Culture War. Let’s only attribute the basest motives to the Pro-Life side. Even Alito and Roberts, who sent the law back for further review instead of upholding it, must be dragged out to the pillories.

    Perhaps you would care to explain how the dissenter’s arguments made any sense…




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  31. Gromitt Gunn says:

    Of course, the damage in Texas was already done. The only Planned Parenthood clinic within 100 miles of my house was forced to close under this horrible law. The property has been sold and the building renovated.

    Miraculously, the two “pregnancy centers” that set up within 1,000 feet of the clinic also closed down within six months of the clinic closure. And the County *still* has figured out how to replicate the low income women’s health services, STI screening, and community outreach on diabetes and hypertension testing.




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  32. Hal_10000 says:

    @An Interested Party:

    Sure. I don’t agree with them. But they are arguing that the Court has decided that abortion rights should be protected and is contorting itself into arbitrary and and inconsistent rules to do so. In this specific case, making judgements about medical science and the safety of abortion procedures that they are not really qualified for and would be best left to the legislatures (who aren’t really qualified either, of course). The Courts have, on many occasions, upheld regulations that either effectively outlaw an industry or severely restrict it to a few locations or a few providers. But because abortion is special, they are not following established precedent in this case, overturning state regulations on an arbitrary “undue burden” standard.

    As I said, I disagree with them. The primary problem is that the conservative wing does not see abortion as a fundamental right (like free speech, etc) and therefore deserving of special consideration that would not be afford to, say, the right to drive a taxi. But their dissent is not nonsense. It’s a disagreement.




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  33. An Interested Party says:

    …would be best left to the legislatures (who aren’t really qualified either, of course).

    Well that’s the point, isn’t it? It is obvious what the state was trying to do here…they don’t approve of abortion and they were looking for a cute way to minimize it and then they got called out on it…the dissenters seem to have contorted themselves too…




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  34. SKI says:

    I’m a bit surprised that none of the analysis I’ve seen has quoted the last sentence of Ginsburg’s concurrence. I bet that her explicit call out of TRAP laws (bolded below) is going to appear in quite a few District Court opinions.

    So long as this Court adheres to Roe v. Wade, 410 U. S. 113 (1973), and Planned
    Parenthood of Southeastern Pa. v. Casey, 505 U. S. 833 (1992), Targeted Regulation of Abortion Providers laws like H. B. 2 that “do little or nothing for health, but rather strew impediments to abortion,” Planned Parenthood of Wis., 806 F. 3d, at 921, cannot survive judicial inspection.




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  35. Ebenezer_Arvigenius says:

    As I said, I disagree with them. The primary problem is that the conservative wing does not see abortion as a fundamental right (like free speech, etc) and therefore deserving of special consideration that would not be afford to, say, the right to drive a taxi. But their dissent is not nonsense. It’s a disagreement.

    Well then they should make that argument. From a cursory reading of the dissents “nonsense” is not exactly far off the mark.

    I mean come on – even TAC considers the dissents lacking. If you have lost them …




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  36. steve s says:

    This time next year, someone new will be sitting in scalia’s seat. We’ll have Sotomayor, Kagan, RBG, Breyer, and ________ who was nominated by Obama or Hillary.

    Just imagine how much butthurt a tiny few of the commenters will be in.




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  37. al-Alameda says:

    @James Pearce:

    RE: Jack …. I, for one, am not surprised that someone who was born in the Victorian age and died 50 years ago had several antiquated beliefs. Wait till you hear that many of the Founding Fathers were slave owners….

    I admit, it’s shocking to find out that the Founding Fathers did not care much about the rights of women and non-white citizens of America.




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  38. Pch101 says:

    @Hal_10000:

    It’s a sham law that uses a false pretext to ban a legal practice. And no, that shouldn’t pass constitutional muster.

    An example not related to abortion: a suburb in Southern California attempted to use a local law to make it effectively impossible to operate a porn shop within city limits. The law didn’t specifically ban the stores, it just imposed standards that were so absurdly high and arbitrary that there was no way that one could operate such a store and not be in violation of the local law. Of course, this created a First Amendment problem, so the law was tossed.

    http://articles.latimes.com/1989-02-02/news/mn-2628_1_adult-bookstore

    “Small government” is a euphemism used by the right to defend local and state laws that restrict personal liberty. Nobody should be fooled by the intent, and the Supreme Court has every reason to ensure that government does not impose requirements that serve no legitimate purpose.




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  39. SKI says:

    @Ebenezer_Arvigenius:

    Well then they should make that argument. From a cursory reading of the dissents “nonsense” is not exactly far off the mark.

    I actually found it interesting that only Thomas’s dissent was on the merits. Alito’s was principally about res judicata and the bit on the actual impact was all about the sufficiency of the evidentiary foundation – not a challenge to the actual right.

    As Mary Ziegler noted at SCOTUSblog:

    Justice Samuel Alito’s dissent is telling. Writing for himself, Thomas, and Chief Justice John Roberts, Alito spent much of his time explaining why res judicata barred the clinics’ claim. And when Alito finally got to the application of the “undue burden” test, he barely complained about the balancing approach adopted by the majority. Instead, he primarily emphasized that the majority opinion simply got the facts wrong. Alito suggested that Texas’s HB 2 may well create an undue burden if the clinics that could comply with the law were located too far away or lacked the capacity to serve the needs of women in the state. All of that was a lot to concede, particularly when Texas and its pro-life allies had fought hard for their own arguments about what an undue burden was, in their state and in general.




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  40. grumpy realist says:

    @SKI: Considering that the first attempt at chucking this law was thrown out because of the argument that the case had not ripened sufficiently to be judged, I fail to see where res judicata comes into it. The same issue was not addressed. You don’t get to throw out a case due to a legal technicality and then get to say that the case was decided on the merits.

    The fact that Justice Alito tried to make that argument doesn’t speak well for his jurisprudence.




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  41. SKI says:

    @grumpy realist: Except the 5th Circuit had overturned the District court on that very basis. It very much was at issue in the case.




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  42. steve s says:

    Alito tried to say all the clinics closing immediately after the law was passed might have just been a Big Coincidence.

    In other words, he’s a typical right-wing liar.




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  43. DrDaveT says:

    @Pch101:

    “Small government” is a euphemism used by the right to defend local and state laws that restrict personal liberty.

    Be complete — it’s also used to defend predatory or destructive practices by profit-seeking individuals and corporations.




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  44. grumpy realist says:

    @SKI: if it’s the same family of cases, I don’t see what the problem is. You don’t get to automatically throw out an appeal by saying that the lower court already decided on it.

    P.S. I wish that Rod Dreher over at TAC would decide to stop writing on any legal decision involving a culture war issue. He doesn’t have a legal background, he doesn’t know law, and his complaints invariably boil down to “we’re not living in a society where Christianity trumps all! Waaaah.”

    (Contrary to Dreher’s belief, going back to pre-Luther Europe wouldn’t make legal decisions automatically more “Christian.” )




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  45. SKI says:

    @grumpy realist:

    if it’s the same family of cases, I don’t see what the problem is. You don’t get to automatically throw out an appeal by saying that the lower court already decided on it.

    It isn’t the same case.

    Plaintiffs (or at least some of them) filed an earlier case against the law as facially unconstitutional. They won at the District Court level and then lost at the 5th Circuit. They did NOT appeal that loss – and it became final.

    They then brought this different suit against the law on an “as applied” basis. The 5th said that because they didn’t appeal suit #1, they shouldn’t be allowed to bring suit #2. Breyer’s majority held that there is enough of a difference between the facts at issue in the facial challenge and the as applied challenge to prevent res judicata from blocking the claim.

    Put another way, res judicata prevents re-litigating the same claim more than once. The majority found enough difference to state it wasn’t the same claim – even if the relief granted (holding the law unconstitutional) was exactly what the plaintiffs in suit #1 sought as well. I agree with the majority but it isn’t a slam dunk or a completely frivolous issue.




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  46. grumpy realist says:

    @SKI: Didn’t the earlier case get thrown out because it wasn’t considered “ripe enough”?

    It’s not just re-litigating the same claim; you also have to have the same claim decided on the merits for res judicata to raise its thorny head.




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  47. SKI says:

    @grumpy realist:

    Didn’t the earlier case get thrown out because it wasn’t considered “ripe enough”?

    No, the underlying 5th Circuit opinion in the first case is here. It says nothing about ripeness.

    There was a discussion in the second 5th Circuit case (the one just overturned) as to whether the an asserted lack of ripeness in case #1 (the regs hadn’t been issued yet) prevented the 5th from finding that res judicata existed (see here) but they found that that was not present in case#1.




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