Musings on the Supreme Court- IX Narasimhan Vijayaraghavan We will go there after we go deal with the Texas case in which Chief Justice John J Roberts was in the minority and in dissent, now turned a liberal in majority in Stephen Russo.

Musings on the Supreme Court- IX
Narasimhan Vijayaraghavan
We will go there after we go deal with the Texas case in which Chief Justice John J Roberts was in the minority and in dissent, now turned a liberal in majority in Stephen Russo.

Contextually, now read the JOHN HELLERSTEDT case from Texas of 2013 vintage, when Chief Justice John J Roberts was in office then too. An abridged version would suffice our purpose.

SUPREME COURT OF THE UNITED STATES
[June 27, 2016]
In 2013, the Texas Legislature passed House Bill 2 (H.B. 2), which contained several provisions related to abortions. One such provision required that any physician performing an abortion have admitting privileges at a hospital within 30 miles of where the abortion was performed, and another provision required that all abortion clinics comply with standards for ambulatory surgical centers. The petitioners are a group of abortion providers, challenged the validity of the law on the ground it denied equal protection, unlawfully delegated lawmaking authority, and constituted arbitrary and unreasonable state action.
The District Court dismissed the equal protection, unlawful delegation, and arbitrary and unreasonable state action claims and granted declaratory and injunctive relief against the enforcement of the two contested provisions of H.B. 2. The U.S. Court of Appeals for the Fifth Circuit affirmed the district court’s dismissal of the equal protection, unlawful delegation, and arbitrary and unreasonable state action claims and partially reversed the injunctions because the plaintiffs failed to show that they placed a substantial burden in the path of a woman seeking an abortion.

On appeal, before the Supreme Court Justice Stephen G. Breyer delivered the opinion for the 5-3 (Only 8 were on SCOTUS then- as replacement for deceased Justice Antonin Scalia was yet to be nominated) majority, holding that the provisions of H.B. 2 at issue do not confer medical benefits that are sufficient to justify the burdens they impose on women seeking to exercise their constitutional right to an abortion..
(i) The Court held that the judicial review of such statutes need not be wholly deferential to the legislative fact-finding, especially when the factual record before the district court contradicted it.
(ii) In this case, the evidence presented before the district court showed that the admitting privileges requirement of H.B. 2 did not advance the state’s interest in protecting women’s health but did place a substantial burden in the path of a woman seeking an abortion by forcing about half of the state’s abortion clinics to close.
(iii) The record contains adequate legal and factual support for the District Court’s conclusion that the admitting-privileges require¬ment imposes an “undue burden” on a woman’s right to choose. The evidence record a dramatic drop in the number of clinics means fewer doctors, the longer waiting times, and increased crowding. It also means a significant increase in the distance women of reproductive age live from an abor¬tion clinic. Increased driving distances are an additional burden, which, when tak¬en together with others caused by the closings, and when viewed in light of the virtual absence of any health benefit, help support the District Court’s “undue burden” conclusion.

(iv) Before this requirement was enacted, Texas law required abortion facilities to meet a host of health and safety re¬quirements that were policed by inspections and enforced through administrative, civil, and criminal penalties. Record evidence shows that the new provision imposes a number of additional requirements that are generally unnecessary in the abortion clinic context; The District Court’s conclusion that the requirement places a substantial obstacle in the path of women seeking an abortion is proved through evidence on record.

(v) This additional layer of regulation provided no further protections than those already in place. Similarly, the requirement that abortion clinics meet the standards for ambulatory surgical centers did not appreciably lower the risks of abortions compared to those performed in non-surgical centers. These requirements were so tangentially related to the actual procedures involved in an abortion that they were essentially arbitrary. If these requirements took effect, only seven or eight facilities in the entire state would be able to function, which is in and of itself a substantial burden on women seeking abortions because those remaining facilities would not be able to meet the demand.

(vi) The Court also held that the petitioners were not precluded from challenging the provisions as they were applied despite previous litigation on whether the provisions were unconstitutional on their face, especially given the evidence about how their enforcement had actually affected abortion access across the state.

Justice Ruth Bader Ginsburg
In her concurrence, Justice Ruth Bader Ginsburg wrote that modern abortions are so safe relative to other medical procedures, including childbirth itself, that any law that made accessing abortions more difficult in the name of safety could not pass judicial review.
Justice Clarence Thomas wrote a dissent stating that Majority had not fully considered the benefits of House Bill 2 and focused instead on the burdens it placed on women. That, he said, was inappropriate, as the Court was supposed to weigh the benefits and burdens against each other. He claimed that the benefits of House Bill 2 were uncertain, which meant that the Supreme Court did not have the right to overrule the Texas legislature on the matter. He further claimed that the Court defended the right to abortion too vigorously compared to other rights.

Justice Alito also wrote an opinion that disagreed with the Court’s decision, which was joined by Justices Roberts and Thomas. In his opinion, Alito argued that another court had already addressed the constitutionality of House Bill 2 in the case Planned Parenthood v. Abbott. Therefore, Alito claimed, the US Supreme Court had no right to rule on the same issue in Whole Woman’s Health v. Hellerstedt. Alito also proposed that the Court disregarded normal legal rules so that it could hear the case and rule in favor of protecting abortion rights.

“Judges may come and Judges may go. But the causes get dealt with as before. That is certainty, consistency and in legalese called as Law of Precedents. And that endures to the health of Judiciary and the nation at large”
Jurist Richard Posner was quoted once.

The decision of SCOTUS in Stephen Russo will come left, front and centre in the Nov,2020 elections between Donald J Trump v. Joe Biden. Already polarised and debased Trump’s base is likely to go to the far right and Roe v Wade will again occupy pole position. Why? The nominees to Supreme Court becomes very critical. His base elected Trump despite all his ‘transgressions and idiosyncrasies’ because he promised to put Conservative Judges on the bench. He has fulfilled a huge part by appointing not one or two but 200 Judges on the Federal Courts. And got to nominate Neil Gorsuch and Brett Kavannaugh for SCOTUS.
Those of us who care to follow what happens ‘back home’ as we say, a fascinating debate has broken out in the US. With the departure of Justice Anthony Kennedy, who morphed on the bench to a lifelong swing vote among The Nine…
(Author is practising advocate in the Madras High Court)