Musings on the Supreme Court- VIII Narasimhan Vijayaraghavan

Musings on the Supreme Court- VIII
Narasimhan Vijayaraghavan

The Libertarian four to begin with were- JUSTICE BREYER, joined by JUSTICE GINSBURG, JUSTICE SOTOMAYOR, and JUSTICE KAGAN, who concluded:

(I) The District Court had properly applied the standards set forth in the Court’s earlier abortion-related cases, particularly Planned Parenthood of Southeastern Pa. v. Casey, 505 U. S. 833, and Whole Woman’s Health, to determine the constitutionality of the enactment.. Under well-established legal standards, a district court’s findings of fact “must not be set aside unless clearly erroneous, and the reviewing court must give due regard to the trial court’s opportunity to judge the witnesses’ credibility.” The testimony and other evidence contained in the extensive record developed over the 6-day trial support the District Court’s conclusion on Act 620’s constitution¬ality
(II) The District Court’s findings are sufficient to support its conclusion that enforcing the admitting-privileges requirement would drastically reduce the number and geographic distribution of abortion providers, making it impossible for many women to obtain a safe, legal abortion in the State and imposing substantial obstacles on those who could
(III) The District Court supervised Does 1, 2, 5, and 6 for more than 18 months as they tried, and largely failed, to obtain conforming privileges from 13 relevant hospitals; it relied on a combination of direct evidence that some of the doctors’ ap¬plications were denied for reasons having nothing to do with their abil¬ity to perform abortions safely, and such circumstantial evidence— were rejected by Fifth Circuit Court concluding that Does 2, 5, and 6 acted in bad faith without any basis and reasoning.
(IV) Based on the , the District Court’s significant factual findings—both as to burdens and as to benefits— the factual findings supported by evidence are not “clearly erroneous.” And the ultimate conclusion that Act 620 is unconstitutional are proper

THE CHIEF JUSTICE without going into the validity of the law con¬cluded that because Louisiana’s Act 620 imposes a burden on access to abortion just as it imposed by the nearly identical Texas law invalidated four years ago in Whole Woman’s Health v. Hellerstedt, as it cannot stand under principles of stare decisis.

Thomas, J, Alito, J. Gor¬such, J and Kavanaugh, J., filed dissenting opinions.
In dissent, Justice Samuel A. Alito Jr., joined by Justices Gorsuch, Kavanaugh and Clarence Thomas, held that the Louisiana law protected the health and safety of women seeking abortions and that the requirements for obtaining admitting privileges helped ensure the competence of doctors.
“There is ample evidence in the record showing that admitting privileges help to protect the health of women by ensuring that physicians who perform abortions meet a higher standard of competence than is shown by the mere possession of a license to practice,”
Justice Alito held ,
“In deciding whether to grant admitting privileges, hospitals typically undertake a rigorous investigative process to ensure that a doctor is responsible and competent and has the training and experience needed to perform the procedures for which the privileges are sought.”

Thus the Supreme Court by 5:4 held the Louisiana’s Act 620 to be unconstitutional, by a slender yet typical majority in such sensitive cases. In the context of our musing, it may make sense to advert to the Texas decision too to drive home the point that the self-same Chief Justice John Roberts, in the minority and in dissent then, switched loyalties to the majority in the Louisiana law. All in the name of being disciplined and abiding to the law of precedents. To the lawmen, it makes sense. And a lot of it. To the laymen, it may seem nothing but exhibition of law’s one more asinine faculty. That makes it a fascinating tale to muse on. Now, contextually read the Texas Visit to SCOTUS, its abridged version, for easy perception. Not necessarily for it alone. But to make a visit to where we need to after this journey.

Remember Kesavananda Bharati experience. The fascinating facts we alluded to were not trivia. They were huge. They made a huge difference to what the majority view was, what the law was accepted as and come to be accepted as and so on. Today, even a commoner understands that Kesavanand Bharati has propounded that there are essential features making up the Basic Structure of the Constitution which are beyond the pale of Parliament’s power of Amendment’. It did not happen by itself from the verdict. The verdict has come to be understood so. And the unveiling of the mystery surrounding it, to a large extent is owed to T R Andhyarjuna’s Untold Story.

The moral equivalent of Kesavanand Bharati in India, could be the Roe v. Wade Abortion law case in the US of A. It crops up every now and then and surely every four years when presidential elections are due and take place. In 1973 when the abortion rights of women were upheld, it was felt that the controversy may have been buried for all times to come. On the other hand, if anything, in the last 47 years, just as Kesavanand is now 47 years old, positions on Roe v. Wade have become more polarized. My research led me to some fascinating behind the scenes pro active conduct of the Justices in the majority, which have all been revealed now since 2008 after the records of Eight Justices out of The Nine have been declassified. (Ninth of Chief Justice Warrenburger continues to be withheld and may say so till 2025) revealing how Roe v. Wade came to be the ‘transformative decision’ of all times. But, could well never have happened or gone completely the other way.

We read the words on the papers in the judgments and assume it was so and meant to be so and believe it to be so. But there are stories and stories behind those words, syllables and sentences that only those close to the power centre or action or privy to and only when they choose to indulge in revelatory conduct, we come to be aware of stunning facts hitherto under wraps. So, it is with Roe v. Wade, the most famous case in American SCOTUS history rivaling Brown v. Board of Education on segregation law. Why should we need to learn about what took place in Roe v. Wade when India is free of this controversy with a statute in Medical Termination of Pregnancy Act, 1971 in place and we do not have such a polarized state in our midst?

Wrong. We are not musing on abortion rights. We are musing on the Supreme Court. What happened in SCOTUS in Roe v. Wade whether in focus or out of focus has a lot to tell us. Roe v. Wade did not happen overnight. It happened when The Nine were there. But two died in harness. It became The Seven. And the composition of The Seven as conservatives vs liberals. And even as Richard Nixon after the Nov,1971 elections, took office in Jan,1971 and appointed two to replace the deceased Justices. And how what had transpired in the meanwhile had a telling impact on the ultimate decision in Roe v. Wade in 1973, all this remained a secret. Now, revealed thanks to the disclosure of the classified papers of the eight Justices. That, surely, dear reader would be material to muse on the Supreme Court. We will go there….

(Author is practicing advocate in the Madras High Court)

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