Did you hear about the recent Supreme Court decision in the case WHOLE WOMAN’S HEALTH v. HELLERSTEDT? Also known as "the Texas abortion case"?
In case you missed it, here is the full decision:
http://www.supremecourt.gov/opinions/15pdf/15-274_p8k0.pdf
Yeah, read the opinion, don't just listen to biased coverage on the news.
If you don't have much time, skip directly to page 48 (as numbered by the PDF file). Read Clarence Thomas' dissent in the case. It is important, not just for this case but for legal jurisprudence as a whole. It addresses much of what is wrong with our legal system in general. Read Thomas' full dissent, if not the whole ruling. But I'll summarize what I believe Thomas is trying to say.
Our legal system is less a blind weighing of the facts than a biased justification for the results certain justices want. This starts by bending the rules for which cases to accept, agreeing to hear cases from plaintiffs that do not have standing.
Ordinarily, plaintiffs cannot file suits to vindicate the constitutional rights of others. But the Court employs a different approach to rights that it favors. So in this case and many others, the Court has erroneously allowed doctors and clinics to vicariously vindicate the putative constitutional right of women seeking abortions.
The court also is able to select which level of scrutiny to apply to various cases. Thomas gives a summary of why all of this is a problem.
Ultimately, this case shows why the Court never should have bent the rules for favored rights in the first place. Our law is now so riddled with special exceptions for special rights that our decisions deliver neither predictability nor the promise of a judiciary bound by the rule of law.
Now he delves into the issue of "standing."
Driving this doctrinal confusion, the Court has shown a particular willingness to undercut restrictions on third-party standing when the right to abortion is at stake. And this case reveals a deeper flaw in straying from our normal rules: when the wrong party litigates a case, we end up resolving disputes that make for bad law.
This suit is possible only because the Court has allowed abortion clinics and physicians to invoke a putative constitutional right that does not belong to them—a woman’s right to abortion.
For most of our Nation’s history, plaintiffs could not challenge a statute by asserting someone else’s constitutional rights. ... This Court would “not listen to an
objection made to the constitutionality of an act by a party whose rights it does not affect and who has therefore no interest in defeating it.” ... And for good reason: “[C]ourts are not roving commissions assigned to pass judgment on the validity of the Nation’s laws.”
Those limits broke down, however, because the Court has been “quite forgiving” in applying these standards to certain claims. ... Some constitutional rights remained “personal rights which . . . may not be vicariously asserted.” ... But the Court has abandoned such limitations on other rights, producing serious anomalies across similar factual scenarios.
Above all, the Court has been especially forgiving of third-party standing criteria for one particular category of cases: those involving the purported substantive due process right of a woman to abort her unborn child.
Here too, the Court does not question whether doctors and clinics should be allowed to sue on behalf of Texas women seeking abortions as a matter of course. They should not. The central question under the Court’s abortion precedents is whether there is an undue burden on a woman’s access to abortion. ... But the Court’s permissive approach to third-party standing encourages litigation that deprives us of the information needed to resolve that issue. Our precedents encourage abortion providers to sue—and our cases then relieve them of any
obligation to prove what burdens women actually face. I find it astonishing that the majority can discover an “undue burden” on women’s access to abortion for “those [women] for whom [Texas’ law] is an actual rather than an irrelevant restriction,” ... without identifying how many women fit this description; their proximity to open clinics; or their preferences as to where they obtain abortions, and from whom. “[C]ommonsense inference[s]” that such a burden exists, ... are no substitute for actual evidence. There should be no surer sign that our jurisprudence has gone off the rails than this: After creating a constitutional right to abortion because it “involve[s] the most intimate and personal choices a person may make in a lifetime, choices central to personal dignity and autonomy,” ... the Court has created special rules that cede its enforcement to others.
Strong stuff. Abortion clinics should not be allowed to sue since they're not the ones purportedly suffering.
Next Thomas turns his attention to the "undue burden" standard used in a case like this. He points out that the undue burden standard was introduced in an abortion decision, as a new level of judicial scrutiny. Yet in this case the majority changes the standard to apply stricter scrutiny to the law in question, so that they can arrive at the desired outcome. This is precisely backwards.
I remain fundamentally opposed to the Court’s abortion jurisprudence. ... Even taking Casey as the baseline, however, the majority radically rewrites the undue-burden test in three ways. First, today’s decision requires courts to “consider the burdens a law imposes on abortion access together with the benefits those laws confer.” ... Second, today’s opinion tells the courts that, when the law’s justifications are medically uncertain, they need not defer to the legislature, and must instead assess medical justifications for abortion restrictions by scrutinizing the record themselves. ... Finally, even if a law imposes no “substantial obstacle” to women’s access to abortions, the law now must have more than a “reasonabl[e] relat[ion] to . . . a legitimate state interest.” ... These precepts are nowhere to be found in Casey or its successors, and transform the undue-burden test to something much more akin to strict scrutiny.
Thomas goes on to expand on those three points, and point out how confusing this will be in the future.
Today’s opinion 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.
Meanwhile, the majority’s undue-burden balancing approach risks ruling out even minor, previously valid infringements on access to abortion. Moreover, by second-guessing medical evidence and making its own assessments of “quality of care” issues ... the majority reappoints this Court as “the country’s ex officio medical board with powers to disapprove medical and operative practices and standards throughout the United States.” ... And the majority seriously burdens States, which must guess at how much more compelling their interests must be to pass muster and what “commonsense inferences” of an undue burden this Court will identify next.
Finally Thomas explains why all of this is so damaging to the judicial system. He throws in a little history lesson first. He reminds us that there are various levels of scrutiny applied in certain cases .... but they simply don't matter because the court can apply whatever standard it likes, as it chose to do in this case.
The majority’s furtive reconfiguration of the standard of scrutiny applicable to abortion restrictions also points to a deeper problem. The undue-burden standard is just one variant of the Court’s tiers-of-scrutiny approach to constitutional adjudication. And the label the Court affixes to its level of scrutiny in assessing whether the government can restrict a given right—be it “rational basis,” intermediate, strict, or something else—is increasingly a meaningless formalism. As the Court applies whatever standard it likes to any given case, nothing but empty words separates our constitutional decisions from judicial fiat.
Though the tiers of scrutiny have become a ubiquitous feature of constitutional law, they are of recent vintage. Only in the 1960’s did the Court begin in earnest to speak of “strict scrutiny” versus reviewing legislation for mere rationality, and to develop the contours of these tests.
The illegitimacy of using “made-up tests” to “displace longstanding national traditions as the primary determinant of what the Constitution means” has long been apparent. ... The Constitution does not prescribe tiers of scrutiny. The three basic tiers—“rational basis,” intermediate, and strict scrutiny—“are no more scientific than their names suggest, and a further element of randomness is added by the fact that it is largely up to us which test will be applied in each case.”
But the problem now goes beyond that. 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. .... 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.
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.” ... The Court should abandon the pretense that anything other than policy preferences underlies its balancing of constitutional rights and interests in any given case.
Thomas then discusses how some rights became more preferred than others, and concludes with this:
Eighty years on, the Court has come full circle. The Court has simultaneously transformed judicially created rights like the right to abortion into preferred constitutional rights, while disfavoring many of the rights actually enumerated in the Constitution. But our Constitution renounces the notion that some constitutional rights are more equal than others. A plaintiff either possesses the constitutional right he is asserting, or not—and if not, the judiciary has no business creating ad hoc exceptions so that others can assert rights that seem especially important to vindicate. A law either infringes a constitutional right, or not; there is no room for the judiciary to invent tolerable degrees of encroachment. Unless the Court abides by one set of rules to adjudicate constitutional rights, it will continue reducing constitutional law to policy-driven value judgments until the last shreds of its legitimacy disappear.
And the scathing final paragraph, ending by quoting Scalia:
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.
