Perpetuating Bad Decisions

Julaine Appling

2020 | Week of June 29 | Radio Transcript #1366

The US Supreme Court just gave us another supremely bad decision. More on that shortly. First a brief explanation about why two commentaries back to back on bad decisions from our highest court.

Our US Supreme Court’s session runs from October through June 30. The court typically holds release of its decisions on high-profile, meaning the most watched and most controversial cases, until the session is nearly over.

We’ve had two such decisions released since June 15 and then another one just this past Monday. Three other significant cases are still pending; we anticipate those being released yet this week.

And that brings us to the case I referred to at the opening.  In a 5-4 decision, our nation’s highest court determined that Louisiana’s law that required abortionists to have admitting privileges to a hospital within thirty miles of where the abortions were being performed was unconstitutional because it impermissibly, in the court’s opinion, restricted women’s access to abortion. The bill was designed to protect the well-being of women who are at risk of needing emergency hospital help during an abortion.

Chief Justice John Roberts, a George W. Bush appointee, was the tipping vote in this narrow decision. Roberts, again, joined with the liberal contingency of the court, just as he did in the recent Bostock decision. It’s Roberts’ reasoning that needs highlighting because it’s a pretty common legal excuse for bad decisions.

Voting with Roberts were justices Breyer, Kagan, Ginsburg, and Sotomayor. Breyer authored the majority opinion, with Roberts issuing a concurring opinion.

At this point a bit of background on a case out of Texas several years ago is in order.  Texas had passed a law with a number of restrictions on abortion, one of which was the admitting privileges requirement like the one Louisiana passed and that was the subject of this current lawsuit. In 2016, the US Supreme Court ruled that the Texas law put an “undue burden” on access to abortion and in a 5-3 vote, determined the law was unconstitutional. In that decision, Chief Justice Roberts sided with the minority.

This Texas case and decision are significant because that is what Chief Justice Roberts relied on to defend his vote in the Louisiana case.  Roberts says in his concurring opinion, “The legal doctrine of stare decisis requires us, absent special circumstances, to treat like cases alike.” “The Louisiana law, he writes, “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 chief justice goes on to explain that “Stare decisis (“to stand by things decided”) is the legal term for fidelity to precedent….It has long been ‘an established rule to abide by former precedents, where the same points come again in litigation; as well to keep the scale of justice even and steady, and not liable to waver with every new judge’s opinion’….” Roberts writes, “This principle is grounded in a basic humility that recognizes today’s legal issues are often not so different from the questions of yesterday and that we are not the first ones to try to answer them.”

Frankly, Roberts spends an incredible amount of time defending his decision in this current case, a decision that is rooted in what has time and again shown itself to be bad judicial reasoning—perpetuating one bad court decision after another because of an originally bad court decision. That kind of judicial thinking much too often sets aside the real job of the court, which is to consider every case, every law brought before it in light of the Constitution, not exclusively in light of previous court decisions.

States have the right to restrict abortion and certainly have the right to protect the health of women—and that’s what the Louisiana law did.  And by the way, in 2013, in Wisconsin Governor Walker signed into law a bill that required abortionists to have admitting privileges to a hospital within thirty miles of where the abortions were being performed. Planned Parenthood immediately sued the state citing “undue burden” and “restricted access,” and the courts sided with Planned Parenthood. Our law has never been enforced; and now we know it won’t be, at least not any time soon.

Kagan, Sotomayor, Breyer and Ginsburg are notoriously pro-abortion. Roberts was the swing, pivotal vote in this case.  Roberts has used a questionable judicial precedent to arrive at a conclusion that compromises the health and well-being of women, tramples on state’s rights, perpetuates previous bad decisions, and actually advances the abortion industry. That’s bad judicial reasoning no matter how you look at it.  The high court badly needs improving.

This is Julaine Appling for Wisconsin Family Council reminding you the prophet Hosea said, “My people are destroyed for lack of knowledge.”

Julaine Appling has taught on the junior high, high school, and college levels, and for five years was the administrator of a private school. In 1998 she was asked to become the Executive Director of Wisconsin Family Council, where her mission is to advance Judeo-Christian principles and values in Wisconsin by strengthening, preserving, and promoting marriage, family, life and liberty. In addition to regularly being interviewed for Wisconsin television, radio, and newspapers, she is the host of "Wisconsin Family Connection," aired weekly on almost 50 radio stations in Wisconsin including the VCY America radio network.

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