In another blow to social conservatives, the Supreme Court on Monday delivered a 5-4 decision against a 2014 Louisiana law requiring abortion doctors to have hospital admitting privileges within 30 miles of abortion facilities.
The decision swung on the vote of Chief Justice John Roberts, who joined the court’s liberal wing, and follows a June 15 high court ruling, which Roberts joined, that redefined the 1964 Civil Rights Act to include sexual orientation and gender identity in employment law. The two rulings have led observers to question the thinking of Roberts, who was billed as a strict constitutionalist judge when George W. Bush nominated him in 2005.
Roberts had voted with the conservative minority in a 2016 decision that struck down a similar Texas law in Whole Woman’s Health v. Hellerstedt. But in Monday’s decision, June Medical Services v. Russo, Roberts reasoned that because the high court set precedent in the Texas case, which he said he still believes was “wrongly decided,” the doctrine of stare decisis—the principle of respecting precedent—compelled him to rule with the majority against the Louisiana law.
Conservatives were quick to charge Roberts with hypocrisy, noting that Roberts has set aside Supreme Court precedent in other recent cases, including one in 2019 involving the government taking private property without just compensation, which he argued was unconstitutional and justified a reversal.
Andrew McCarthy wrote that in Louisiana’s case, “Roberts clung to stare decisis, the principle of upholding precedent, in order to protect the putative ‘right’ to abortion, a wholesale invention of willful progressive justices that is bereft of constitutional grounding.”
Other conservatives joined in criticizing Roberts’ decision.
In a National Review article with the scathing headline “John Roberts Hands a Victory to the Likes of Kermit Gosnell,” John McCormack noted that Justice Samuel Alito in the 2016 Texas case had argued the reasoning for that law, passed after the grisly crimes of Philadelphia abortionist Kermit Gosnell became public in 2013, was plainly to protect women’s health and safety.
“Justice Clarence Thomas and Chief Justice John Roberts joined Alito’s Hellerstedt dissent in 2016. But on Monday, Roberts handed a victory to would-be Kermit Gosnells in voting to strike down a 2014 Louisiana law almost identical to the Texas law at stake in Hellerstedt.”
Thomas wrote a strongly worded dissent in Monday’s decision, standing alone even among his conservative peers in complaining that the court in past rulings had “created a right to abortion out of whole cloth, without a shred of support from the Constitution’s text,” and that the proper response would be to overturn those “grievously wrong” decisions.
Thomas joined Justices Alito, Brett Kavanaugh and Neil Gorsuch in also arguing the abortion clinics that brought suit did not have proper standing to challenge the law as “third-party” litigants in the first place.
Notre Dame law professor Richard Garnett wrote: “The court’s decision, and the fact that Chief Justice John Roberts—a judicial conservative who, until now, has consistently voted to uphold reasonable abortion restrictions—voted with the court majority, have deeply disappointed not only pro-life Americans but all those who understand how badly the 1973 Roe v. Wade decision has distorted and degraded our law, our politics and our political morality.”
Former Arkansas Gov. Mike Huckabee pointedly tweeted: “John Roberts is an empty black robe who wants to be loved by liberals who believe in legislating from the bench. Mr. Chief Justice, if you want to be a legislator, resign and run for Congress. But at any rate, just resign!”
In reaching Monday’s decision, the court overruled a previous decision by the U.S. 5th Circuit Court of Appeals that the Louisiana law was indeed constitutional.
The Supreme Court’s liberal justices—Ruth Bader Ginsburg, Stephen Breyer, Sonia Sotomayor, and Elena Kagan—signed onto a separate opinion, arguing that the law would “drastically reduce the number and geographic distribution of abortion providers” and create an undue burden on women seeking abortion.
But Kristen Waggoner, general counsel at Alliance Defending Freedom, said the decision plainly puts the interests of abortionists over the safety of women.
“Women seeking abortions have the same right to competent and quality care as patients involved in other surgical procedures,” Waggoner said in a statement. “Louisiana’s admitting privileges law protected that right. Louisiana abortion providers went to extraordinary lengths to erase a law that state legislators enacted overwhelmingly, in bi-partisan fashion, to promote the well-being of women. Our work to prioritize women’s health and safety over abortion business interests will continue at the federal, state, and local levels.”
ADF filed a friend-of-the-court brief in the case on behalf of 80 current, former and incoming Louisiana state legislators who voted for or supported the law, which sought to bring requirements for abortion doctors up to the level of other physicians who practice outpatient procedures.
Louisiana State Sen. Katrina Jackson, a pro-life Democrat who authored the law when she was a state House member, told FOX News’ Shannon Bream the requirements for doctors who perform vasectomies in Louisiana exceed what is required of abortionists.
Above: Pro-life activists rally outside the United States Supreme Court in Washington D.C., on June 29.
Photo: Stefani Reynolds/CNP/Polaris/Newscom