Supreme Court Justice Roberts sides with liberals again, this time on Louisiana abortion law

The Chief Justice has become more than a swing vote.

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The Supreme Court on Monday decided that a Louisiana law requiring that those who perform abortions at clinics must have admitting privileges in a nearby hospital is unconstitutional, as it places an undue burden on women seeking abortions.

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The high court ruled 5-4 in the case of June Medical Services LLC v. Russo, with Chief Justice John Roberts again casting a deciding vote by siding with the court’s liberal faction. The previously thought conservative Chief Justice has gone beyond his oft-stated goal of providing balance to the court and now can be legitimately, in many cases, viewed as a moderate to liberal member of the court.

“We have examined the extensive record carefully and conclude that it supports the District Court’s findings of fact,” said Justice Stephen Breyer for the majority. “Those findings mirror those made in Whole Woman’s Health in every relevant respect and require the same result. We consequently hold that the Louisiana statute is unconstitutional… The District Court found that the law ‘offers no significant health benefit’ and that ‘conditions on admitting privileges’ common to hospitals throughout the State have made and will continue to make it impossible for abortion providers to obtain conforming privileges for reasons that have nothing to do with the State’s asserted interests in promoting women’s health and safety.”

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“The legal doctrine of stare decisis requires us, absent special circumstances, to treat like cases alike,” Roberts wrote in a concurring opinion. “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.”

The problem with stare decisis in the Roberts interpretation is that a past court can legislate from the bench and ignore stare decisis by breaking judicial precedent, while a future court must comply with the new interpretation. It makes the Supreme Court a first come, first serve legal fast food joint.

In his eloquent dissent, Justice Clarence Thomas wrote, “Today a majority of the Court perpetuates its ill-founded abortion jurisprudence by enjoining a perfectly legitimate state law and doing so without jurisdiction.”

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In a related court issue, the high court on Monday, over the dissent of Justices Ruth Bader Ginsburg and Sonia Sotomayor, refused to take up a case challenging the government’s death penalty regulations. This clears the way for federal executions to resume in July. Roberts voted with the conservative majority on this, as did other moderate justices.

Attorney General William Barr said in a statement on the issue earlier this month, “The American people, acting through Congress and Presidents of both political parties, have long instructed that defendants convicted of the most heinous crimes should be subject to a sentence of death. The four murderers whose executions are scheduled today have received full and fair proceedings under our Constitution and laws. We owe it to the victims of these horrific crimes, and to the families left behind, to carry forward the sentence imposed by our justice system.”

David Kamioner
meet the author

David Kamioner is a veteran of U.S. Army Intelligence and an honors graduate of the University of Maryland's European Division. He also served with the Pershing Nuclear Brigade and the First Infantry Division. Subsequent to that he worked for two decades as a political consultant, was part of the American Red Cross Hurricane Katrina disaster relief effort in Louisiana, ran a homeless shelter for veterans in Philadelphia, and taught as a college instructor. He serves as a Contributing Editor for LifeZette.

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