To paraphrase (one of) the endings of LOTR Return of the King: There may come a day when the Supreme Court revisits Roe v Wade, but … today is not that day. In a case that nearly duplicated Whole Woman’s Health in 2016, the court struck down requirements for abortionists in Louisiana to have admitting privileges at a nearby hospital. The 5-4 ruling was authored by Justice Stephen Breyer, but it was enabled by Chief Justice John Roberts’ swing vote:
The Supreme Court ruled Monday that Louisiana’s tough restriction on abortion violates the Constitution, a surprising victory for abortion rights advocates from an increasingly conservative court.
The ruling struck down a law passed by Louisiana’s legislature in 2014 that required any doctor offering abortion services to have admitting privileges at a hospital within 30 miles. Its enforcement had been blocked by a protracted legal battle.
Two Louisiana doctors and a medical clinic sued to get the law overturned. They said it would leave only one doctor at a single clinic to provide services for nearly 10,000 women who seek abortions in the state each year.
The challengers said the requirement was identical to a Texas law the Supreme Court struck down in 2016. With the vote of then-Justice Anthony Kennedy, the court ruled that Texas imposed an obstacle on women seeking access to abortion services without providing any medical benefits.
The court agreed — well, five justices, anyway — that the case was too similar to the 2016 precedent for reconsideration. It also ran afoul of Casey, Breyer wrote, and the reliance on the district court as the trier of fact:
(a) Under the applicable constitutional standards set forth in the Court’s earlier abortion-related cases, particularly Planned Parenthood of Southeastern Pa. v. Casey, 505 U. S. 833, and Whole Woman’s Health, “ ‘[u]nnecessary health regulations that have the purpose or effect of presenting a substantial obstacle to a woman seeking an abortion impose an undue burden on the right’ ” and are therefore “constitutionally invalid,” Whole Woman’s Health, 579 U. S., at ___. This standard requires courts independently to review the legislative findings upon which an abortion-related statute rests and to weigh the law’s “asserted benefits against the burdens” it imposes on abortion access. Id., at ___. The District Court here, like the trial court in Whole Woman’s Health, faithfully applied these standards. The Fifth Circuit disagreed with the District Court, not so much in respect to the legal standards, but in respect to the factual findings on which the District Court relied in assessing both the burdens that Act 620 imposes and the health-related benefits it might bring.
Under well-established legal standards, a district court’s findings of fact “must not be set aside unless clearly erroneous, and the reviewing court must give due regard to the trial court’s opportunity to judge the witnesses’ credibility.” Fed. Rule. Civ. Proc. 52(a)(6). When the district court is “sitting without a jury,” the appellate court “is not to decide factual issues de novo,” Anderson v. Bessemer City, 470 U. S. 564, 573. Provided “the district court’s account of the evidence is plausible in light of the record viewed in its entirety, the court of appeals may not reverse it even though convinced that had it been sitting as the trier of fact, it would have weighed the evidence differently.” Id., at 573–574. Viewed in light of this standard, the testimony and other evidence contained in the extensive record developed over the 6-day trial support the District Court’s conclusion on Act 620’s constitutionality. Pp. 16–19.
(b) Taken together, the District Court’s findings and the evidence underlying them are sufficient to support its conclusion that enforcing the admitting-privileges requirement would drastically reduce the number and geographic distribution of abortion providers, making it impossible for many women to obtain a safe, legal abortion in the State and imposing substantial obstacles on those who could. Pp. 19–35
The liberal wing’s arguments are probably too predictable to quote at length. The real question is how Roberts justified declining to take up the challenge to Roe once again, especially since he dissented in Whole Woman’s Health. Roberts points up his earlier vote on the 2016 case, but says that “[t]he legal doctrine of stare decisis requires us, absent special circumstances, to treat like cases alike.” With both Whole Woman’s Health and Casey in mind, Roberts says he had no choice but to join the plurality:
We should respect the statement in Whole Woman’s Health that it was applying the undue burden standard of Casey. The opinion in Whole Woman’s Health began by saying, “We must here decide whether two provisions of [the Texas law] violate the Federal Constitution as interpreted in Casey.” 579 U. S., at ___ (slip op., at 1). Nothing more. The Court explicitly stated that it was applying “the standard, as described in Casey,” and reversed the Court of Appeals for applying an approach that did “not match the standard that this Court laid out in Casey.” Id., at ___, ___ (slip op., at 19, 20).
Here the plurality expressly acknowledges that we are not considering how to analyze an abortion regulation that does not present a substantial obstacle. “That,” the plurality explains, “is not this case.” Ante, at 40. In this case, Casey’s requirement of finding a substantial obstacle before invalidating an abortion regulation is therefore a sufficient basis for the decision, as it was in Whole Woman’s Health. In neither case, nor in Casey itself, was there call for consideration of a regulation’s benefits, and nothing in Casey commands such consideration. Under principles of stare decisis, I agree with the plurality that the determination in Whole Woman’s Health that Texas’s law imposed a substantial obstacle requires the same determination about Louisiana’s law. Under those same principles, I would adhere to the holding of Casey, requiring a substantial obstacle before striking down an abortion regulation.
So the upshot here is that Roberts still thinks Whole Woman’s Health is misguided, and doesn’t have that much reliance on Casey either. So why is he voting to reinforce both rather than take the opportunity to review either or both decisions? It’s a curious position, one that Justice Clarence Thomas dismantles by pointing out that the five justices ignored the real question — that of standing to challenge the law in the first place:
Despite the fact that we granted Louisiana’s petition specifically to address whether “abortion providers [can] be presumed to have third-party standing to challenge health and safety regulations on behalf of their patients,” Conditional Cross-Pet. in No. 18–1460, p. i, a majority of the Court all but ignores the question. The plurality and THE CHIEF JUSTICE ultimately cast aside this jurisdictional barrier to conclude that Louisiana’s law is unconstitutional under our precedents. But those decisions created the right to abortion out of whole cloth, without a shred of support from the Constitution’s text. Our abortion precedents are grievously wrong and should be overruled. Because we have neither jurisdiction nor constitutional authority to declare Louisiana’s duly enacted law unconstitutional, I respectfully dissent. …
Even if the plaintiffs had standing, the Court would still lack the authority to enjoin Louisiana’s law, which represents a constitutionally valid exercise of the State’s traditional police powers. The plurality and THE CHIEF JUSTICE claim that the Court’s judgment is dictated by “our precedents,” particularly Whole Woman’s Health. Ante, at 38 (plurality opinion); see also ante, at 2, 11–16 (ROBERTS, C. J., concurring in judgment). For the detailed reasons explained by JUSTICE ALITO, this is not true. Post, at 3–23 (dissenting opinion).
But today’s decision is wrong for a far simpler reason: The Constitution does not constrain the States’ ability to regulate or even prohibit abortion. This Court created the right to abortion based on an amorphous, unwritten right to privacy, which it grounded in the “legal fiction” of substantive due process, McDonald v. Chicago, 561 U. S. 742, 811 (2010) (THOMAS, J., concurring in part and concurring in judgment). As the origins of this jurisprudence readily demonstrate, the putative right to abortion is a creation that should be undone.
This seemed predictable from the time that Roberts joined the liberal wing to take this case, after the Fifth Circuit reversed the district court. The writing was on the wall at that point, although some hoped Roberts would use the occasion to rethink Whole Woman’s Health. Roberts seems determined to apply stare decisis as often as possible to avoid delving into Roe or Casey, or even the standing issues raised by Thomas, Alito, and Gorsuch. That’s not a surprise, either; the bigger surprise might be that Brett Kavanaugh pushed back against Roberts on both occasions.
The outcome leaves us with the absurdity of having two separate standards for outpatient surgical centers in Louisiana and Texas. Those that don’t abort babies aren’t required to have doctors with admitting privileges, while all others do. How exactly does that promote the health of women?