SC Rules against Texas in Abortion Case

[montanajoe]

5-3 Decision.

http://www.supremecourt.gov/opinions/15pdf/15-274_p8k0.pdf

Scalia would not have changed the outcome.

[mountaineer]

Associated Press story:

WASHINGTON — The Supreme Court struck down Texas' widely replicated regulation of abortion clinics Monday in the court's biggest abortion case in nearly a quarter century.

The justices voted 5-3 in favor of Texas clinics that had argued the regulations were a thinly veiled attempt to make it harder for women to get an abortion in the nation's second-most populous state.

Justice Stephen Breyer's majority opinion for the court held that the regulations are medically unnecessary and unconstitutionally limit a woman's right to an abortion.

Texas had argued that its 2013 law and subsequent regulations were needed to protect women's health. The rules required doctors who perform abortions to have admitting privileges at nearby hospitals and forced clinics to meet hospital-like standards for outpatient surgery.

Breyer wrote that “the surgical-center requirement, like the admitting privileges requirement, provides few, if any, health benefits for women, poses a substantial obstacle to women seeking abortions and constitutes an ‘undue burden' on their constitutional right to do so.”

Justices Anthony Kennedy, Ruth Bader Ginsburg, Sonia Sotomayor and Elena Kagan joined Breyer.

Chief Justice John Roberts and Justices Samuel Alito and Clarence Thomas dissented.

Thomas wrote that the decision “exemplifies the court's troubling tendency ‘to bend the rules when any effort to limit abortion, or even to speak in opposition to abortion, is at issue.'” Thomas was quoting an earlier abortion dissent from Justice Antonin Scalia, who died in February.   ...

Read the rest here.

[SirLinksALot]

Sadly, Even Antonin Scalia's presence would not have saved this case. The decision was 5-3 ( underscoring once again that if Hillary wins, we are even more screwed )

Here is Clarence Thomas' dissent.... Thomas aims his dissent at the majority’s double standards when it comes to abortions, especially on third-party lawsuits for constitutional rights and the disregard of res judicata. But Thomas’ criticism finally comes to rest on a more basic issue — the sophistry used by the court to achieve desired results:

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. Fisher v. University of Tex. at Austin, ante, at 7, 12 (internal quotation marks omitted). 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. See Whole Woman’s Health v. Lakey, 46 F. Supp.3d 673, 684 (WD Tex. 2014) (noting conflict in expert testimony about abortion safety). Likewise, it is now easier for the government to restrict judicial candidates’ campaign speech than for the Government to define marriage—even though the former is subject to strict scrutiny and the latter was supposedly subject to some form of rational-basis review. Compare Williams-Yulee v. Florida Bar, 575 U. S. ___, ___–___ (2015) (slip op., at 8–9), with United States v. Windsor, 570 U. S. ___, ___ (2013) (slip op., at 20).

These more recent decisions reflect the Court’s tendency to relax purportedly higher standards of review for lesspreferred rights. E.g., Nixon v. Shrink Missouri Government PAC, 528 U. S. 377, 421 (2000) (THOMAS, J., dissenting) (“The Court makes no effort to justify its deviation from the tests we traditionally employ in free speech cases” to review caps on political contributions). Meanwhile, the Court selectively applies rational-basis review— under which the question is supposed to be whether “any state of facts reasonably may be conceived to justify” the law, McGowan v. Maryland, 366 U. S. 420, 426 (1961)— with formidable toughness. E.g., Lawrence, 539 U. S., at 580 (O’Connor, J., concurring in judgment) (at least in equal protection cases, the Court is “most likely” to find no rational basis for a law if “the challenged legislation inhibits personal relationships”); see id., at 586 (Scalia, J., dissenting) (faulting the Court for applying “an unheard-of form of rational-basis review”).

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.” Williams-Yulee, supra, at ___ (slip op., at 1) (BREYER, J., concurring). The Court should abandon the pretense that anything other than policy preferences underlies its balancing of constitutional rights and interests in any given case.

Samuel Alito concurs with Thomas on the hypocrisy of the court on res judicata:

If anything, when a case involves a controversial issue, we should be especially careful to be scrupulously neutral in applying such rules. The Court has not done so here. On the contrary, determined to strike down two provisions of a new Texas abortion statute in all of their applications, the Court simply disregards basic rules that apply in all other cases. …

Under the rules that apply in regular cases, petitioners could not relitigate the exact same claim in a second suit. As we have said, “a losing litigant deserves no rematch after a defeat fairly suffered, in adversarial proceedings, on an issue identical in substance to the one he subsequently seeks to raise.” Astoria Fed. Sav. & Loan Assn. v. Solimino, 501 U. S. 104, 107 (1991).

In this abortion case, however, that rule is disregarded. The Court awards a victory to petitioners on the very claim that they unsuccessfully pressed in the earlier case. The Court does this even though petitioners, undoubtedly realizing that a rematch would not be allowed, did not presume to include such a claim in their complaint. The Court favors petitioners with a victory that they did not have the audacity to seek.

Now, without Scalia, we have Clarence Thomas taking over the mantle in ringing the alarm bells and giving us fair warning of the bad precedent this court is giving... He says we have reached a turning point in American jurisprudence, where the ends justify the means rather than using the rule of law:

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.

[geronl]

Sadly, Even Antonin Scalia's presence would not have saved this case. The decision was 5-3 ( underscoring once again that if Hillary wins, we are even more screwed )

Trump and Hillary are both pro-abortion and pro-affirmative action.

[montanajoe]

The thing is only Thomas was in favor of upholding the Texas Statute. Both Alito and Roberts would remand. This means there is a  7-1 majority on the Court today opposed to Statutes like these. Neither presidential candidate will have the opportunity to nominate 7 Justices....

[thackney]

The thing is only Thomas was in favor of upholding the Texas Statute. Both Alito and Roberts would remand. This means there is a  7-1 majority on the Court today opposed to Statutes like these. Neither presidential candidate will have the opportunity to nominate 7 Justices....

It doesn't take 7 Justices to change the balance of the vote.  It does not require a unanimous decision.

In this case, a change of a single judge would have left the 5th U.S. Circuit Court of Appeals previous ruling intact.

[don-o]

Nullify.

[montanajoe]

It doesn't take 7 Justices to change the balance of the vote.  It does not require a unanimous decision.

In this case, a change of a single judge would have left the 5th U.S. Circuit Court of Appeals previous ruling intact.

Say what?

This was a 5-3 USSC decision and only 1 Justice found the Texas Statute Constitutional.

If you read the case you will see that only Thomas would uphold the statute as Constitutional, 5 Justices find the Statute Unconstitutional on its face and the other 2 Justices would remand to the trial Court for further findings of fact. Again only 1 Justice would find the statute Constitutional on its face.

It's becoming clear, to me at least, that the only way to undo Roe is through a Constitutional Amendment...

[rodamala]

Texas should just do what 0bama does.  Ignore the court.

[austingirl]

Another kick in the teeth to States' Rights. One more reason for Texas to part ways with the National Government.

[thackney]

Say what?

This was a 5-3 USSC decision and only 1 Justice found the Texas Statute Constitutional.

If you read the case you will see that only Thomas would uphold the statute as Constitutional, 5 Justices find the Statute Unconstitutional on its face and the other 2 Justices would remand to the trial Court for further findings of fact. Again only 1 Justice would find the statute Constitutional on its face.

It's becoming clear, to me at least, that the only way to undo Roe is through a Constitutional Amendment...

One vote changes from a 5-3 to a 4-4 vote.  The lower court ruling would stand.

[montanajoe]

One vote changes from a 5-3 to a 4-4 vote.  The lower court ruling would stand.

The Court normally has 9 not 8 justices.

We see this differently, when only 1 Justice finds a statute Constitutional I have to assume it will take more than one additional Justice finding it Constitutional to make it so, at a minimum the 4 of the current 7 would need to be retire/die and be replaced...

[thackney]

The Court normally has 9 not 8 justices.

We see this differently, when only 1 Justice finds a statute Constitutional I have to assume it will take more than one additional Justice finding it Constitutional to make it so, at a minimum the 4 of the current 7 would need to be retire/die and be replaced...

How do you explain the vote was 5-3 and not 7-1?  The vote makes the decision, not the opinions written.

As I said: In this case, a change of a single judge would have left the 5th U.S. Circuit Court of Appeals previous ruling intact.

[montanajoe]

How do you explain the vote was 5-3 and not 7-1?  The vote makes the decision, not the opinions written.

As I said: In this case, a change of a single judge would have left the 5th U.S. Circuit Court of Appeals previous ruling intact.

Actually, if it was 4-4 the case would not have been decided in this term, but because there were 5 sitting justices who found the statute unconstitutional it was decided by a 8 member Court.

How the opinions are written gives you a clue as to an individual Justices thinking on the matter. In this case only 1 Justice, Thomas, found the statute Constitutional. Which tells me as many as 7 sitting members of the current court find Roe to be settled law and therefore IMO the only way to overturn Roe is by a Constitutional Amendment...

[geronl]

and therefore IMO the only way to overturn Roe is by a Constitutional Amendment...

Is for Congress to take it out of the purview of the courts

[montanajoe]

Is for Congress to take it out of the purview of the courts

Actually, the ship has sailed on that one. Congress can't get around a issue that the SC has declared Unconstitutional by retroactively limiting its jurisdiction. The only way is through a Constitutional Amendment or for Congress to pass legislation addressing the issue that the SC will declare constitutional.

[thackney]

In this case only 1 Justice, Thomas, found the statute Constitutional.

So 2 Justices thought it unconstitutional but voted for it anyways?

[montanajoe]

So 2 Justices thought it unconstitutional but voted for it anyways?

No two Justices, Roberts and Alito voted to remand the case back to the District Court for additional findings of fact. What is telling it that if they thought the Texas Statute was Constitutional they would have joined Thomas and just come out and say so, but they did not.

[Sanguine]

I would like to know what of it is unconstitutional. 

[thackney]

No two Justices, Roberts and Alito voted to remand the case back to the District Court for additional findings of fact. What is telling it that if they thought the Texas Statute was Constitutional they would have joined Thomas and just come out and say so, but they did not.

Thank you for the info!

Cheers

[Free Vulcan]

I would like to know what of it is unconstitutional.

Me too. This is a serious blow on many levels and the justification seems a little lame.

I also find it funny how the court will protect an unmentioned 'right' like abortion to a far greater degree than a numerated one like the 2nd Amendmente.

[Sanguine]

Me too. This is a serious blow on many levels and the justification seems a little lame.

I also find it funny how the court will protect an unmentioned 'right' like abortion to a far greater degree than a numerated one like the 2nd Amendmente.

Yes, one advances a certain agenda, the other impedes the same agenda.

[RetBobbyMI]

Nothing more than Judicial Tyranny on states rights.  Time for action before they "decide" there are no more states, just one Federal  state.  Trump or Clinton won't change this tyranny.  The only way to change this is the Convention of States. 

[mountaineer]

I’m Mad.
Posted on June 27, 2016
Students For Life

The Supreme Court handed down a horrible decision today on abortion and I’m angry. Why? Because women lost. Because children lost.

By throwing out common sense regulations that were meant to protect women from theSCOTUS-Lose predatory abortion business, five Supreme Court Justices put access to abortion over the safety of women. They put the bottom line over the safety of women.

The Supreme Court put aside the will of the people and a majority of our nation that agrees with these safety regulations and played politics with women’s lives.

This is an injustice.

I’m angry because we know that every time a mother walks into an abortion facility, she is betrayed. She is deceived into thinking abortion is her only option. She is deceived into thinking that her child growing inside of her is not worthy of life and protection.

Today’s decision by the Supreme Court in Whole Woman’s Health vs. Hellerstedt means that parts of the Texas law that we lobbied so hard to pass back in 2013 was ruled unconstitutional. It means that abortion facilities in Texas won’t be beholden to the same safety standards as other surgical outpatient centers. Standards like making sure there are enough soap dispensers and that the hallways are wide enough for EMT gurneys to pass through.

This is a travesty.

The women of our nation have been told once again by the Supreme Court that we are nothing more than our uteruses. That our so-called “right to abortion” is more important that our safety.

This should never happen in our nation.

We know that every time a woman has an abortion, one precious life ends, and at Students for Life we are fighting to stop that. However, that doesn’t mean we don’t care about the mother. Her life shouldn’t end because of her abortion. She doesn’t deserve the death penalty too.

For those who say that this law was simply a sham, I have two words for them: Kermit Gosnell.

Kermit Gosnell was able to legally operate an abortion facility in Philadelphia for more than four decades. And despite the fact that local doctors had stopped referring patients to him because women were coming back with STDS from dirty equipment, no one investigated him. Despite the fact that numerous inquiries had been made into the PA Department of Health, no one went into his facility. It took the death of a woman and a DEA drug raid to discover the truth about his House of Horrors.

Why? Because years earlier, Planned Parenthood and their allies in the pro-abortion movement lobbied against these types of common-sense regulations in the state of Pennsylvania.

Karnamaya Mongar died at the hands of Kermit Gosnell because Planned Parenthood and their allies put their financial self-interests ahead of commonsense safety standards.

Today, we know more women will continue to die, continue to contract diseases from unclean equipment, and continue to be forced into substandard abortion facilities.

However, I don’t want us to be angry for too long. Today we mourn; tomorrow we resume our fight.

Our mission at Students for Life is to our change our culture, starting with where the abortion industry most targets: our young people. We will continue this work and we know we are winning. We know the majority of Americans and millennials actually were in favor of the Texas law and are with us in our opposition to legal abortion. We are making an impact. We are changing our culture.

[HoustonSam]

Nullify.

Agreed.