Below is my column in the Hill newspaper on the late addition of the Louisiana abortion case to an already impactful Supreme Court docket. The most interesting aspect of June Medical however may be what it will ultimately say about the doctrine of Stare Decisis and the respect for precedent.
Here is the column:
The Supreme Court is beginning one of the most consequential terms in its history, with cases dealing with gun rights, immigration, and other hot button issues. While much of the media is focused on Ukraine, the court added one case that is a standout on its already weighty docket. That case is June Medical Services versus Rebekah Gee, which involves a Louisiana abortion law, and it could be the one that pro-life advocates have long awaited to break the 5-4 wall of protection around pro-choice precedent.
The Louisiana case also is important because of its potential impact on a longstanding principle called stare decisis, the doctrine that commits justices to respect prior holdings to preserve the continuity and integrity of the court. That doctrine has always been honored primarily in the breach but, this term, with a dozen cases in highly contested areas, it could lose even the pretense of a functioning principle. Indeed, June Medical could be a lethal dose for the centuries old judicial doctrine.
June Medical is the perfect vehicle for chipping away not just at the legacy of Roe versus Wade but at the hold of precedent on such cases. Three years ago, the court struck down provisions under a Texas statute with a similar provision to the Louisiana law, requiring that doctors who perform abortions must have admitting privileges at a nearby hospital. The court ruled 5-3 in the Texas case that such requirements imposed a “substantial obstacle in the path of women seeking a pre-viability abortion.” As conservative judge Patrick Higginbotham stated in his dissent to the Fifth Circuit Court opinion that upheld the Louisiana law, the Supreme Court decision on the Texas case would seem to clearly answer the same question. Higginbotham criticized his colleagues for failing to “meaningfully apply” the previous Supreme Court rulings.
The truth is that nothing has changed in three years regarding case law, but much has changed on the Supreme Court. The 5-3 Texas decision reflected the key role of sinc retired Justice Anthony Kennedy as the swing vote on the bench and the missing role of Justice Antonin Scalia, who passed away before the release of what would have been a 5-4 decision. Now Kennedy has been replaced by Justice Brett Kavanaugh, and Scalia has been replaced by Justice Neil Gorsuch. That is why the new case could pose as great a threat to stare decisis as it does to Roe. Supreme Court justices seem to rediscover the doctrine of stare decisis whenever they lack a fifth vote for the majority. Those same justices often show no qualms in reversing prior cases when they have the votes to do so.
The hypocrisy around this doctrine was driven home by a deeply disturbing filing in a pending gun rights case by Senator Sheldon Whitehouse. In a brief filed on behalf of himself and Senators Mazie Hirono, Richard Blumenthal, Richard Durbin, and Kirsten Gillibrand, Whitehouse objected that the five conservative justices routinely ruled together and he threatened the court with “restructuring” if it does not “heal” itself. In other words, start voting with the liberal justices or face a court packing bill. Of course, Whitehouse does not view the four liberal justices regularly voting together as being biased or ideologically rigid. That is because he views those justices as correct and the conservative justices as wrong. Thus, he has attacked the conservative justices for failing to honor stare decisis, without a hint of awareness in his own calling for various landmark conservative decisions to be overturned.
It may be time to reconsider the scope of stare decisis and what it suggests about interpretation. Justices take an oath to uphold the Constitution and to “faithfully and impartially” interpret the law. It is bizarre to argue that they should vote for some interpretation of the Constitution that they believe is wrong and unfounded just to preserve precedent. If that view had prevailed in the past, Brown versus Board of Education would have upheld the racist precepts of “separate but equal” in Plessy versus Ferguson. Indeed, Roe versus Wade would have upheld the right of states to determine access to abortions. When it comes to fundamental rights, justices should faithfully interpret the Constitution.
Whitehouse and others pressed Kavanaugh in his nomination to promise to uphold Roe and the cases that followed it. Yet if Kavanaugh does not believe there is a right to an abortion in the Constitution or that this is a state issue, then why should he vote to uphold an interpretation that he considers incorrect? There have been plenty of settled but wrong rulings by the court. I seriously doubt that Whitehouse would expect Justice Ruth Bader Ginsburg to vote against the right to choose if she did not prevail in earlier cases. Indeed, the liberal justices continue to oppose prior rulings in areas ranging from the death penalty to gun rights to union fees.
This brings us back to June Medical. If the court sides with Louisiana, the decision could encourage a myriad of state laws limiting abortion services or practices. The fear is of a strategy to kill Roe by a thousand cuts. There are ample reasons to oppose such a course under past interpretations of the Constitution. However, I would not expect that a new justice such as Kavanaugh should adopt any interpretations of the Constitution simply because they preceded him on the court. The underlying interpretation of the Constitution is either correct or it is not. The passage of time does not produce some judicial alchemy that turns lead reasoning into gold.
Citizens rely on the Constitution to define and protect core democratic values. Supreme Court justices have a duty to all citizens to get it right. When it comes to the correct interpretation of the Constitution, poet Ella Wheeler Wilcox may have had the only principled approach, when she declared that “no question is ever settled until it is settled right.”
Jonathan Turley is the Shapiro Professor of Public Interest Law at George Washington University. You can follow him on Twitter @JonathanTurley.