On Monday, June 29, 2020, the Supreme Court of the United States (SCOTUS) decided the case of June Medical Services v. Russo (hereinafter called June Medical). The brief asked the SCOTUS to uphold a Louisiana law that required abortion doctors to have admitting privileges at a local hospital.
Related: SCOTUS, 5-4: Abortion Providers Win, Women’s Health Loses
The law’s reasoning was simple and solid: if something went wrong during an abortion, the patient could be rushed to the hospital where surgeons could save the patient’s life.
Five abortion clinics and 4 abortion providers were joined in the action against the Louisiana law. They claimed that Louisiana’s legal requirement would place an undue and unfair restriction on the patient’s “right” to an abortion (we’ll get to this in a moment).
The Fifth Circuit Court held for the state law, but the SCOTUS reversed the decision and declared the Louisiana law unconstitutional.
The primary reason for the SCOTUS decision wasn’t made on the merits of the case. It was made due to stare decisis: the principle of “standing precedent”. The text of the June Medical decision says so, clearly and unambiguously. A previous SCOTUS decision on an almost identical Texas law (Whole Woman’s Health) had held that such restrictions were unconstitutional. Rather than decide June Medical on its own merit, the SCOTUS decision was to stick with precedent.
At last, we see the actual problem: rather than decide a case on its merit, the SCOTUS decided a case primarily on precedent. A valid analogy would be “since your friends are jumping off that bridge, I expect you to jump off it as well”.
The SCOTUS is the “court of last resort”. There is no higher court available (let’s not get religious, ok?) Hence, the SCOTUS has the responsibility to decide every case on its merit. If precedent exists and is appropriate, then using precedent makes sense.
However, when precedent violates Constitutional protections, or when a reexamination of the case determines that the original precedent is somehow flawed, it is the duty of the SCOTUS to possibly reverse precedent.
Some may say that precedent is important and should never be reversed. But SCOTUS has reversed itself previously. In 2008, the SCOTUS held, in Janus v. AFSCME (hereinafter called Janus), that the 1st Amendment right to free speech superseded the power of public sector unions to demand fees from non-members.
It is well known, and unions even admitted during arguments, that those fees are often used as donations to political candidates. The legal issue arose when a non-member (Janus) demanded that he be fully reimbursed for portion of the fees used for political speech.
Since the union could not accurately determine what percentage of those fees were used to support political speech, and since they even admitted so in court, the SCOTUS held that public sector unions may no longer demand any fees from non-members. And to prevent future transgressions, the SCOTUS also declared that public sector unions must now use “opt-in” instead of “opt-out” membership.
The Janus decision reversed a longstanding SCOTUS precedent – Abood v. Detroit Board of Education – that had allowed public sector unions to control public sector hiring: if you weren’t a member of the union, you couldn’t gain employment in the public sector. Even though this was a direct violation of the 1st Amendment guarantee of “free association”, the SCOTUS had denied case after case trying to overturn Abood. It took a change in the composition of the court and and the appointment of a “textualist” justice to finally permit Constitutional freedoms to prevail over union preferences.
Here we see the importance of SCOTUS decisions: they allow states to set policy that can significantly restrict individual rights declared in the Bill of Rights and the Amendments. And here we see the need for the SCOTUS to evaluate each case on its own merit.
The Constitution is silent on medical procedures. It is also silent on housing, food, clothing, a “livable wage”, and other concepts that have been labeled “rights”. This is intentional: the Declaration of Independence singles out three rights as supreme to all others: “life, liberty, and the pursuit of happiness”. However, none of these three rights listed in the Declaration is enumerated in either the Constitution or any of its Amendments.
Instead, the Constitution – which is nothing more than a fairly short pamphlet describing “how to run a government” – does not provide for any protections of individual rights. The Founders understood this and drafted the Bill of Rights – the first 10 Amendments. These were meant as restrictions against government overreach.
The protections in the Bill of Rights range from the right to assemble and the free exercise of religion, to the right against self-incrimination, to the right to a trial by a jury – and to the right to not be subjected to unusual punishments (remember, “tar and feathers” was in wide use during Revolutionary War days). These rights, most of which were noted in the Declaration of Independence, were encoded into Amendments to specifically make sure that “Congress shall make no law” to abridge those rights.
But the most important of all of these is the 10th Amendment, where the Federal government is intentionally limited to those powers specifically enumerated in the text of the Constitution. The Founders were wise enough to know that they couldn’t have thought of everything, so they decided that “The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people.”
Now let’s return to the “right” to an abortion. The Constitution describes the powers of government, not the rights of The People. Neither the Constitution nor the Amendments (27 in all) protect a right to privacy or a right to a medical procedure. Therefore, those rights – privacy and medical procedures – are reserved to the states themselves according to the 10th Amendment.
When the SCOTUS declared (in Roe v Wade) that Texas laws making abortion illegal were unconstitutional, it did so “out of whole cloth”. There was no Constitutional basis for such a decision. Remember: the Constitution and the Amendments are silent on medical procedures.
Interestingly and somewhat puzzlingly, the SCOTUS also declared in Roe that only a licensed physician could conduct an abortion, and that the states themselves could determine whether an abortion could be performed in the second and third trimesters (which means that states can make “late term abortions” illegal).
Roe has been celebrated as a “woman’s rights” issue. However, it is technically not a “rights” issue at all: the “right to privacy” does not exist, nor does the “right to a medical procedure”. Hence, there is no federal “right” to an abortion. Rights can only be declared at a federal level by a Constitutional Amendment.
The SCOTUS cannot create law. It has no legislative authority. Its authority extends only into deciding whether a law (the Legislative branch) or a Presidential order (the Executive branch) meets Constitutional muster. It is also well known that some states refuse to implement SCOTUS decisions. To illustrate this point, Heller and McDonald, the Second Amendment SCOTUS decisions, are being violated every day by far too many states.
Returning to the June Medical decision, the SCOTUS depended on stare decisis as a key reasoning for its decision. In Whole Women’s Health, the SCOTUS declared that a state law which had been duly passed by the Texas legislature, signed by the governor, and implemented under the auspices of 10th Amendment, was unconstitutional. This was the precedent used to declare June Medical unconstitutional.
But here’s the conundrum: since Roe is not based on any Constitutionally guaranteed right, any decisions based on Roe are, to borrow a legal concept, “fruit of the poisonous tree”: the decisions cannot stand because they do not originate from a federally-guaranteed Constitutional power or enumerated right.
And this brings us back to the reason for this discussion and the title of this article. The SCOTUS should decide each case on its own merit. If it uses stare decisis as a basis for a decision, and if the precedent itself is flawed, then the SCOTUS has implemented a decision that can cause grief and hardship for generations.
It took decades to overturn Abood and declare that each person may obtain public sector employment without having to join a union. Let’s hope that it doesn’t take decades for SCOTUS to reexamine Roe (and Obergefell) and decide that federal rights can only be based on the enumerated rights in the Bill of Rights and the rest of the Amendments, and not on the flawed logic or personal wishes of individual justices on the Supreme Court.
