Musings on the Supreme Court-VII Narasimhan Vijayaraghavan

Musings on the Supreme Court-VII
Narasimhan Vijayaraghavan

Supreme Court strikes down restrictive Louisiana abortion law. Chief Justice John Roberts sided with liberal judges to rule that state’s efforts to restrict access to abortion was unconstitutional.

Even as one was musing on the SCOTUS and judicial discipline associated with precedents- out came an epochal verdict from the SCOTUS on 29th June, 2020. It is in line with the most famous verdict of all, in Abortion Law, which is a polarising issue in the United States, at the best and worst of times- Roe v. Wade dt.22nd Jan, 1973. Here is a capsule version of Roe v. Wade worth reading for its historicity and the political football it has become between the conservative Republicans v. Libertarian Democrats. The prognosis is that Stephen Russo verdict of 29th June, 2020, will surely be front and centre in the Presidential Debates between Donald J Trump v Joe Biden.

Roe v. Wade, was a landmark decision of the U.S. Supreme Court in which the Court ruled that the Constitution of the United States protects a pregnant woman’s liberty to choose to have an abortion without excessive government restriction. It struck down many U.S. state and federal abortion laws, and prompted an ongoing national debate in the United States about whether and to what extent abortion should be legal, who should decide the legality of abortion, what methods the Supreme Court should use in constitutional adjudication, and what the role of religious and moral views in the political sphere should be. Roe v. Wade reshaped American politics, dividing much of the United States into abortion rights and anti-abortion movements, while activating grassroots movements on both sides.

The decision involved the case of a woman named Norma McCorvey—known in her lawsuit under the pseudonym “Jane Roe”—who in 1969 became pregnant with her third child and wanted an abortion. But McCorvey lived in Texas, where abortion was illegal except when necessary to save the mother’s life. She was referred to lawyers Sarah Weddington and Linda Coffee, who filed a lawsuit on her behalf in U.S. federal court against her local district attorney, Henry Wade, alleging that Texas’s abortion laws were unconstitutional. A three-judge panel of the U.S. District Court for the Northern District of Texas heard the case and ruled in her favor. Texas then appealed this ruling directly to the U.S. Supreme Court, which agreed to hear the case.
In January 1973, the Supreme Court issued a 7–2 decision ruling that the Due Process Clause of the Fourteenth Amendment to the U.S. Constitution provides a “right to privacy” that protects a pregnant woman’s right to choose whether or not to have an abortion. But it also ruled that this right is not absolute, and must be balanced against the government’s interests in protecting women’s health and protecting prenatal life. The Court resolved this balancing test by tying state regulation of abortion to the three trimesters of pregnancy: during the first trimester, governments could not prohibit abortions at all; during the second trimester, governments could require reasonable health regulations; during the third trimester, abortions could be prohibited entirely so long as the laws contained exceptions for cases when they were necessary to save the life or health of the mother. The Court classified the right to choose to have an abortion as “fundamental”, which required courts to evaluate challenged abortion laws under the “strict scrutiny” standard, the highest level of judicial review in the United States.

Roe was criticized by some in the legal community, and some have called the decision a form of judicial activism. In 1992, the Supreme Court revisited and modified its legal rulings in Roe in the case of Planned Parenthood v. Casey. In Casey, the Court reaffirmed Roe’s holding that a woman’s right to choose to have an abortion is constitutionally protected, but abandoned Roe’s trimester framework in favour of a standard based on fatal viability, and overruled Roe’s requirement that government regulations on abortion be subjected to the strict scrutiny standard.

On the day she argued the Roe v. Wade case before the U.S. Supreme Court in 1971, a young Sarah Weddington, second from left, poses with her then-husband Ron Weddington, far left, Texas Congressman George Mahon, and her mother, Lena Catherine Ragle.
That Roe v. Wade survives is not the contextual big news. It is that Chief Justice John J Roberts who was in dissent in Hellerstedt abortion case relating to Texas and in the minority and glorified ‘conservatism in his outlook’ has turned turtle and shown his liberal face in Stephen Russo emanating from another State, Louisiana. While John J Roberts gave the baton to Stephen Bryer to write the majority opinion, he wrote his shorter but concurrent opinion tilting the vote to 5:4. What was the logic from Chief Justice Roberts for his ‘volte face’ as the Republicans are accusing him? It is the Law of Precedents. And judicial Discipline and Integrity. The political debate revolves around the departure of swing vote of Justice Anthony Kennedy. It was widely perceived that two of Trump’s conservative nominees Justices Neil Gorsuch and Brett Kavannaugh may tilt the balance. Alas, they did factor in the flight of Chief Justice, ‘mild mannered centrist in conservative mould’ as Prof. Lawrence Tribe called him.

Supreme Court strikes down Louisiana abortion clinic law
“The notorious suspects on the Bench- Justices Clarence Thomas and Samuel Alito were joined by Trump nominees Neil Gorsuch and Brett Kavannaugh in dissent. Alas only to be forsaken by their conservative leader John J Roberts, for the first time, on an abortion issue, in the name of judicial discipline placing reliance on the Texas decision as a binding precedent. While Justice Anthony Kennedy, now retired rescued the women espousing abortion in the Texas State law, as the swing vote, with Chief Justice Roberts then in dissent, this time Chief Justice Roberts has defected to the libertarian side”,
Comments a law professor on a television show. Whatever, that lends muscle and ammunition to our debate before our Supreme Court in the Settu vs Kasi tangle. Now read the abridged version of the Stephen Russo verdict.
SUPREME COURT OF THE UNITED STATES
[June 29, 2020]
Louisiana’s Act 620, identical to the Texas “admitting privileges” law at issue in Whole Woman’s Health v. Heller¬stedt, requiring any doctor who performs abortions to hold “active admitting privileges at a hospital located not further than thirty miles from the location at which the abortion is performed or induced,” was challenged by five abortion clinics and four abortion providers on the ground that it imposed an undue burden on the right of their patients to obtain an abortion.

The District Court provi¬sionally forbade the State to enforce the Act’s penalties, while directing the plaintiff doctors to continue to seek privileges and to keep the court apprised of their progress. Later, after a 6-day bench trial, the District Court declared Act 620 unconstitutional on its face and preliminarily enjoined its enforcement. On remand, it held that law imposing conditions on admitting privileges throughout the State creates hardship, making it impossible for abortion providers to obtain conforming privi¬leges and have nothing to do with the State’s in¬terests in promoting women’s health and safety; Thus it’s a substantial obstacle in the path of women seeking an abortion. The court concluded that the law imposes an undue burden and is thus unconstitutional.

The Fifth Circuit reversed, agreeing with the Dis¬trict Court’s interpretation of the standards that apply to abortion reg¬ulations, but disagreed with the factual findings of District Court and allowed the appeal.
The aggrieved doctors preferred appeal before the SCOTUS as against the finding of Fifth Circuit Court.

The Libertarian, Four to begin with, were…

(Advocate practicing in the Madras High Court)