On Monday morning, the Supreme Court struck down a commonsense Louisiana abortion law which required abortionists to obtain admitting privileges at a nearby hospital within 30 miles of their clinic.
In the 5-4 opinion, Chief Justice John Roberts joined the four liberals in deciding the case in favor of the petitioners (abortion clinics).
Justice Clarence Thomas hit the nail on the head in his dissenting opinion.
“[Our previous decisions] created the right to abortion out of whole cloth, without a shred of support from the Constitution’s text,” Justice Thomas wrote. “Our abortion precedents are grievously wrong and should be overruled.”
The decision dismayed pro-life supporters around the country who were hoping that the two newly minted justices on the court would finally provide the five votes needed to protect life in America, and potentially overturn Roe v. Wade in the future.
Unfortunately, Chief Justice Roberts’ decision today has made clear that there are not five votes on the court to protect life or overturn Roe.
Chief Justice Roberts, who wrote a concurring opinion in today’s decision, explained that even though he dissented from a very similar Supreme Court case in Whole Women’s Health v. Hellerstedt in 2016, he voted with the majority today because of the legal doctrine of stare decisis.
This doctrine is Latin and literally means “to stand by things decided.” Roberts explained that even though he still disagrees with how Hellerstedt was decided just four years ago, since that decision is precedent, he must now decide cases based on that previous decision.
“I joined the dissent in Whole Woman’s Health and continue to believe that the case was wrongly decided,” the chief justice wrote. “The question today however is not whether Whole Woman’s Health was right or wrong, but whether to adhere to it in deciding the present case.”
Justice Clarence Thomas took the chief justice to task for his reasoning.
“When our prior decisions clearly conflict with the text of the Constitution, we are required to ‘privilege [the] text over our own precedents,’” Justice Thomas wrote. “Because Roe and its progeny are premised on a ‘demonstrably erroneous interpretation of the Constitution,’ we should not apply them here. Even under the chief justice’s approach to stare decisis, continued adherence to these precedents cannot be justified.”
Today’s decision proves that even with two new justices on the court, there is still no solid 5-4 conservative majority.
At least one more rock-ribbed conservative justice is needed to flip the court and play the part that Chief Justice Roberts was supposed to play.
At his confirmation hearing on September 12, 2005, in a now infamous analogy, Roberts promised the American people that he would be an impartial and unbiased judge.
“Judges are like umpires. Umpires don’t make the rules, they apply them… nobody ever went to a ball game to see the umpire… I will remember that it’s my job to call balls and strikes, and not to pitch or bat,” Roberts said.
Unfortunately, Chief Justice Roberts has thrown down his umpire’s cap. Instead of deciding cases based on his own judicial acumen, he’s chosen to defer to previous court precedents, even those he believes to be erroneous.
If the chief justice was unwilling to reconsider a four-year-old precedent set in Whole Women’s Health v. Hellerstedt, there’s little hope he will consider overturning the 47-year-old precedent set in Roe v. Wade.
For conservatives to truly change the court on the issue of abortion, one more conservative justice is needed.
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