(Probably) Temporary “Stability”

Today’s title is almost a collection of incompatible words when used in that combination. Its subject is Monday’s Supreme Court ruling in June Medical Services, L.L.C. v Russo. While it looks like a straightforward victory for pro-choice people I contend it is much more complicated. Let’s explore.

At the heart of the case is a recent Louisiana law aimed at de facto making abortion unavailable in the state. The law in question requires that anyone performing an abortion in the state have admitting privileges at a local hospital. Of course through the good old boy club they guarantee that no hospital in the state will grant admitting privileges to any physician performing abortions.

The decision went 5-4 – as most observers had anticipated – but it went 5-4 to rule the underlying law unconstitutional therefore preserving a woman’s right to have an abortion at least for the moment.

The four dissenters were the usual suspects: Samuel Alito, Trump appointees Neil Gorsuch and Brett “I like beer” Kavanaugh along with Clarence “Just pay my wife” Thomas. Justices Stephen Breyer, Ruth Bader Ginsburg, Elena Kagan and Sonia Sotomayor were joined by Chief Justice John Roberts to form the majority.

The Roberts vote is both telling and concerning. Roberts ruled based on the legal principle of stare decisis which holds that a case decided is settled law and the Court should not effectively overrule itself; at least certainly not in short order. (Without stare decisis there is no stability.) In 2016 the Court ruled against an almost identical Texas law in Whole Woman’s Health v Hellerstadt.

Interestingly Roberts has stated that he felt the Court ruled incorrectly in Whole Woman’s Health but in this ruling he felt the legal principle was still applicable. I contend that the deciding factor is that Roberts is the Chief Justice. That position changes people. Roberts is ideologically a conservative but his concern for the legacy of what historians will refer to as his Court overrode ideology.

While, particularly in this current political climate, I guess I should be happy for every victory; this is far from over. If you really wanted to cite stare decisis you would use the 1973 Roe v Wade decision. If over 40 years later we are still fighting this same battle I guess the law is far from settled.

The Democratic/progressive tent is a large and diverse one. This is another 2020 Supreme Court victory and an important one for anyone with reproductive capabilities or anyone who cares about someone with said capabilities. (There is at least one more round of Court decisions to be announced yet.)

Most progressives worry about the mortality of Justice Ginsburg. Her health has faced numerous challenges in recent years and she is far from a youngster. While obviously losing her (or for that matter any of the other three liberal justices) would be tragic under the Don Trump/Don McConnell turf sharing agreement, maybe we should be equally concerned about the health of Chief Justice Roberts. Can you imagine what his replacement would look like under those two Dons?

Let’s enjoy the “win” but realize that the “stability” may only be temporary.

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