Even Antonin Scalia wouldn’t have saved this case. In a 5-3 decision, the Supreme Court struck down a Texas statute requiring abortion clinics to adhere to the same standards as other ambulatory surgical clinics, and that doctors have admitting privileges at nearby hospitals. Justice Elena Kagan wrote that the Fifth Circuit erred in applying res judicata and ignoring the impact of the law on the “right to choose”:
The U.S. Supreme Court on Monday struck down one of the nation’s toughest restrictions on abortion, a Texas law that women’s groups said would have forced more than three-quarters of the state’s clinics to shut down.
Passed in 2013, the law said clinics providing abortion services must meet the same building standards as ambulatory surgical centers. And it required doctors performing abortions to have admitting privileges at nearby hospitals. …
Surgical patients undergo a ten-minute procedure without general anesthesia in the outpatient setting of a doctor’s office or clinic, the group said, and complications from abortion are extremely rare.
Texas defended the restrictions, saying that states have wide discretion to pass laws in areas where there is medical and scientific uncertainty. The state said the law was passed “to ensure patient safety and raise standards of care.”
The court’s decision will affect similar laws in twelve other states, some now on hold because of court challenges. The restrictions in Texas represented a new front in efforts to restrict abortion by focusing on protecting the health and safety of the mother rather than the life of the fetus.
Why should abortion clinics get special treatment among ambulatory surgical centers? Those regulations are in place in all other clinics for the safety of the patient. Kagan ruled that these requirements do not apply in abortions:
Moreover, many surgical-center requirements are inappropriate as applied to surgical abortions. Requiring scrub facilities; maintaining a one-way traffic pattern through the facility; having ceiling, wall, and floor finishes; separating soiled utility and sterilization rooms; and regulating air pressure, filtration, and humidity control can help reduce infection where doctors conduct procedures that penetrate the skin. App. 304. But abortions typically involve either the administration of medicines or procedures performed through the natural opening of the birth canal, which is itself not sterile. See id., at 302–303. Nor do provisions designed to safeguard heavily sedated patients (unable to help themselves) during fire emergencies, see Tex. Admin. Code, tit. 25, §135.41; App. 304, provide any help to abortion patients, as abortion facilities do not use general anesthesia or deep sedation, id., at 304–305. Further, since the few instances in which serious complications do arise following an abortion almost always require hospitalization, not treatment at a surgical center, id., at 255–256, surgical-center standards will not help in those instances either. …
At the same time, the record provides adequate evidentiary support for the District Court’s conclusion that the surgical-center requirement places a substantial obstacle in the path of women seeking an abortion.
Under Casey, as Clarence Thomas notes in his dissent, those questions should be left to the legislature. It’s not the role of courts to make determinations on disputed medical or scientific issues. That’s likely why, in the end, Kagan relied on the court’s presumption of a “constitutional” right to abortion to show that the regulations created an undue burden on its exercise:
We agree with the District Court that the surgical center requirement, like the admitting-privileges requirement, provides few, if any, health benefits for women, poses a substantial obstacle to women seeking abortions, and constitutes an “undue burden” on their constitutional right to do so.
Clarence Thomas aims his dissent at the majority’s double standards when it comes to abortions, especially on third-party lawsuits for constitutional rights and the disregard of res judicata. But Thomas’ criticism finally comes to rest on a more basic issue — the sophistry used by the court to achieve desired results:
If our recent cases illustrate anything, it is how easily the Court tinkers with levels of scrutiny to achieve its desired result. This Term, it is easier for a State to survive strict scrutiny despite discriminating on the basis of race in college admissions than it is for the same State to regulate how abortion doctors and clinics operate under the putatively less stringent undue-burden test. All the State apparently needs to show to survive strict scrutiny is a list of aspirational educational goals (such as the “cultivat[ion of] a set of leaders with legitimacy in the eyes of the citizenry”) and a “reasoned, principled explanation” for why it is pursuing them—then this Court defers. Fisher v. University of Tex. at Austin, ante, at 7, 12 (internal quotation marks omitted). Yet the same State gets no deference under the undue-burden test, despite producing evidence that abortion safety, one rationale for Texas’ law, is medically debated. See Whole Woman’s Health v. Lakey, 46 F. Supp.3d 673, 684 (WD Tex. 2014) (noting conflict in expert testimony about abortion safety). Likewise, it is now easier for the government to restrict judicial candidates’ campaign speech than for the Government to define marriage—even though the former is subject to strict scrutiny and the latter was supposedly subject to some form of rational-basis review. Compare Williams-Yulee v. Florida Bar, 575 U. S. ___, ___–___ (2015) (slip op., at 8–9), with United States v. Windsor, 570 U. S. ___, ___ (2013) (slip op., at 20).
These more recent decisions reflect the Court’s tendency to relax purportedly higher standards of review for lesspreferred rights. E.g., Nixon v. Shrink Missouri Government PAC, 528 U. S. 377, 421 (2000) (THOMAS, J., dissenting) (“The Court makes no effort to justify its deviation from the tests we traditionally employ in free speech cases” to review caps on political contributions). Meanwhile, the Court selectively applies rational-basis review— under which the question is supposed to be whether “any state of facts reasonably may be conceived to justify” the law, McGowan v. Maryland, 366 U. S. 420, 426 (1961)— with formidable toughness. E.g., Lawrence, 539 U. S., at 580 (O’Connor, J., concurring in judgment) (at least in equal protection cases, the Court is “most likely” to find no rational basis for a law if “the challenged legislation inhibits personal relationships”); see id., at 586 (Scalia, J., dissenting) (faulting the Court for applying “an unheard-of form of rational-basis review”).
These labels now mean little. Whatever the Court claims to be doing, in practice it is treating its “doctrine referring to tiers of scrutiny as guidelines informing our approach to the case at hand, not tests to be mechanically applied.” Williams-Yulee, supra, at ___ (slip op., at 1) (BREYER, J., concurring). The Court should abandon the pretense that anything other than policy preferences underlies its balancing of constitutional rights and interests in any given case.
Samuel Alito concurs with Thomas on the hypocrisy of the court on res judicata:
If anything, when a case involves a controversial issue, we should be especially careful to be scrupulously neutral in applying such rules. The Court has not done so here. On the contrary, determined to strike down two provisions of a new Texas abortion statute in all of their applications, the Court simply disregards basic rules that apply in all other cases. …
Under the rules that apply in regular cases, petitioners could not relitigate the exact same claim in a second suit. As we have said, “a losing litigant deserves no rematch after a defeat fairly suffered, in adversarial proceedings, on an issue identical in substance to the one he subsequently seeks to raise.” Astoria Fed. Sav. & Loan Assn. v. Solimino, 501 U. S. 104, 107 (1991).
In this abortion case, however, that rule is disregarded. The Court awards a victory to petitioners on the very claim that they unsuccessfully pressed in the earlier case. The Court does this even though petitioners, undoubtedly realizing that a rematch would not be allowed, did not presume to include such a claim in their complaint. The Court favors petitioners with a victory that they did not have the audacity to seek.
Thomas warns that we have reached a turning point in American jurisprudence, where the ends justify the means rather than using the rule of law:
Today’s decision will prompt some to claim victory, just as it will stiffen opponents’ will to object. But the entire Nation has lost something essential. The majority’s embrace of a jurisprudence of rights-specific exceptions and balancing tests is “a regrettable concession of defeat—an acknowledgement that we have passed the point where ‘law,’ properly speaking, has any further application.” Scalia, The Rule of Law as a Law of Rules, 56 U. Chi. L. Rev. 1175, 1182 (1989). I respectfully dissent.
Indeed. And one wonders whether the five justices that signed onto this sorry decision will be as anxious to protect an explicit constitutional right — the Second Amendment, as well as the Fourth and Fifth — when it comes time to rule on an attempt to use “watch lists” to deny Americans the right to keep and bear arms. Don’t hold your breath waiting for consistency when that time comes.