The Supreme Court ruled 5-4 on Monday against a Louisiana law requiring abortion providers to obtain admitting privileges at nearby hospitals. This decision, written by Justice Stephen Breyer, relies on an unlawful court precedent that has no basis in the Constitution. Even worse, though, are the rules the Supreme Court had to circumvent to strike down the Louisiana law.
To take up a case, the Supreme Court must decide that the plaintiffs have legal standing under Article III. Legal standing requires one of two things: The plaintiff must prove that public rights, or those “owed to the whole community in its social aggregate capacity” have been violated, or the plaintiff must prove that private rights, or those “belonging to individuals, considered as individuals,” have been violated.
Abortion is considered a private right based on the Supreme Court’s past rulings, namely Roe v. Wade and Planned Parenthood v. Casey. But the plaintiffs in June Medical Services, LLC v. Russo did not claim that a private right of theirs had been violated. Rather, the abortion providers argued that Louisiana’s law could infringe upon the rights of others — women who might seek their services.
So, the Supreme Court chose to grant third-party, prudential standing to these abortion providers, even though this contradicted past rulings in which the court has questioned the legitimacy of third-party standing, as Justice Clarence Thomas noted in his dissenting opinion.
Here’s the problem with this: By granting abortion providers the standing to litigate the rights of a third party, which, in this case, was broadly defined as multiple anonymous women who sought abortions in the state of Louisiana, the court has expanded its judicial scope beyond its constitutional limitations. Normally, Article III prevents the Supreme Court from ruling willy-nilly on any law or any case that it so chooses. It must prove that it has the right to do so based on the standard I explained above.
In this case, the court ignored Article III’s limitations and its own past rulings completely, treating abortion like a public right, even though Roe clearly defines it as a “private” individual right. If the court has cast aside constitutional limitations in this case, what’s to stop it from deciding it has the power to take up any congressional or state law restricting abortion?
The Supreme Court has thus essentially taken power away from states and granted itself sole jurisdiction over abortion.
Considering Monday’s ruling, Chief Justice John Roberts’s unwillingness to do what’s right and to reverse Roe, and the other dissenting justices’ hesitance to join Thomas’s dissent, conservatives should be wary of relying on the Roberts (or Kagan) court for pro-life victories.
