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The Curious Case of Abortion Jurisprudence
Ana Brennan, J.D. | 09 July 2020
This past June, in the decision June Medical Services v. Russo, the United States Supreme Court struck down Louisiana’s abortion clinic regulations. For those who have been involved in the pro-life movement for some time, we have learned not to get our hopes up when it comes to Supreme Court decisions. This decision has reinforced two reoccurring themes regarding abortion jurisprudence, one, so-called conservative judges cannot be relied upon, and two, fundamental legal principles will be twisted or out-right ignored to protect the "right" to abortion. This has been the court's consistent behavior since the “right” to an abortion was invented in Roe vs. Wade. It is this haphazard application of legal standards that have frustrated pro-life policy efforts.
Legal Doctrine: Stare Decisis
Chief Justice Roberts, an alleged pro-life conservative, was the deciding vote to strike down the abortion clinic regulations. His concurring decision rests heavily on the doctrine of stare decisis, which states that courts should follow legal precedents set by previous decisions to ensure that similar cases are treated similarly. Stare decisis is steeped in our legal heritage from English common law. Stare decisis was a valuable tool that brought consistency and standards to law, which were desperately needed in the Middle Ages. Additionally, during the Middle Ages, many judges were appointed based on their social standing, not their knowledge of the law. Stare decisis allowed not-so-learned judges to fall back on the decisions of others.
Of course, stare decisis is still relevant to our legal system today. Consistency and legal standards are still crucial to maintaining integrity, but blindly following stare decisis can also undermine our system. The most obvious, and often cited situation deals with the Supreme Court’s decisions regarding race. In Dred Scott v. Sandford, the Supreme Court legally reinforced the idea that some people are nothing but property to be owned. It took a civil war and an amendment to the Constitution to right the wrong of Dred Scott.
In Plessy vs. Ferguson the Supreme Court upheld segregation. They said, “Separate but equal.” End of discussion, right? In Brown vs. Board of Education the Supreme Court overturned Plessy vs. Ferguson finding that segregation was unconstitutional. Of course, there is nuance. It could be argued that these cases presented different facts requiring different outcomes, but that illustrates that when the court wants to overturn a previous decision, they will find "nuance," which justifies ignoring stare decisis.
In Russo, Justice Roberts says that since the regulations in Louisiana are similar to the Texas regulations struck down in Whole Woman’s Health v. Hellerstedt, based on stare decisis, the Louisiana regulations should also be struck down, except Justice Roberts dissented in Hellerstedt. In other words, he feels compelled to apply a decision that he thinks is wrong simply because it was, in fact decided. No matter how horrible a previous decision may be, it is not the job of a judge, let alone a Chief Justice, to use his own judgment and discretion. If this is how stare decisis works, the court should only issue decisions for cases that present a novel legal issue. If it is a legal issue the court has already dealt with, like clinic regulations, they should just give a unanimous verdict saying, "Stare decisis say law good / bad," circling the appropriate word.
Legal Doctrine: Standing
The majority in Russo did not rely on stare decisis to justify striking down the clinic regulations; rather, the court applied its ruling from Hellerstedt. In Russo, the court reaffirmed Hellerstedt stating,
"'[u]nnecessary health regulations that have the purpose or effect of presenting a substantial obstacle to a woman seeking an abortion impose an undue burden on the right' " and are, therefore "constitutionally invalid."
As was the case in Hellerstedt, abortion clinics and abortion providers, not women, were the plaintiffs suing on behalf of their patients. The constitutional question pertains to a woman’s “right” to an abortion, not a right to perform abortions. In law, a party must have standing to challenge a law:
“Standing is a requirement that the plaintiffs have been injured or been threatened with injury by government action. . . .The essence of standing is that no person is entitled to assail the constitutionality of an ordinance or statute except as he himself is adversely affected by it.”
In other words, a person cannot challenge any law they do not like. Harm or future harm to a person personally is required, usually. When it is convenient, the court will apply "third-party standing." The court will grant third-party standing if a law could possibly harm a plaintiff, and the plaintiff's standing does not contravene the interests of those who actually have standing. In his dissent, Justice Thomas discusses the problem of standing.
Even if we apply the definition of third-party standing, abortion clinics and abortionists should not be given standing because their financial interests are in direct conflict with those of women. The purpose of clinic regulations is to protect women from the unscrupulous practices of the abortion industry. In both Texas and Louisiana, several abortion clinics either shut down or would have shut down because of the clinic regulations, thereby reducing access to abortion and creating an undue burden on a woman's "right" to an abortion. The clinic regulations did not create an undue burden; the abortion industry's refusal to comply created the burden. If that is not a conflict of interest that should negate standing, I do not know what is.
Russo should not come as a surprise. Legal and medical standards that apply to other situations do not apply to abortion. Safety regulations, informed consent, and parental involvement are not considered controversial in any other medical scenario. Yet, in the abortion context, a different legal standard is applied, and what should be ordinary becomes extraordinary. The special treatment afforded abortion by the courts makes pursuing pro-life policies difficult. All we can do is keep fighting the good fight.
 June Medical Services, LLC v. Russo, 591 U.S. ___ (2020)
 Roe v. Wade, 410 U.S. 113 (1973)
 Dred Scott v. Sandford, 60 U.S. 393 (1856)
 Plessy vs. Ferguson, 163 U.S. 537 (1896)
 Brown vs. Board of Education, 347 U.S. 483 (1954)
 Whole Woman’s Health v. Hellerstedt, 579 U. S. ___ (2016)
 June Medical Services, LLC v. Russo, 591 U.S. ___ (2020)
 Black’s Law Dictionary, Sixth Edition, The Publisher’s Editorial Staff (1990)
Ana Brennan, J.D.
Vice President of the Society of St. Sebastian
Senior Editor of the Journal of Bioethics in Law & Medicine