SCOTUS 2020 by Unknown

Author:Unknown
Language: eng
Format: epub
ISBN: 9783030538514
Publisher: Springer International Publishing

The Dissents

There were four dissents in the case written by Justices Thomas, Alito, Gorsuch, and Kavanaugh. The longest dissent by far (34 pages) was written by Alito, who launched a broadside against the decision, writing that it “twists the law.” In both Whole Women’s Health and this decision, Alito wrote, “the abortion right recognized in this Court’s decisions is used like a bulldozer to flatten legal rules that stand in the way.” In particular, he argued that doctors who provide abortions are interested in making money and avoiding regulations whereas women seeking abortions are interested in their safety. This “blatant conflict of interest” precluded the doctors from asserting the rights of women wishing to obtain an abortion as the basis of their standing. “[I]t is deeply offensive to our rules of standing,” Alito wrote, “to permit them to sue in the name of their patients when they challenge laws enacted to protect their patients’ safety.”26

Alito also argued that the plurality misapplied the undue burden standard by balancing the benefits of the law against the burden created. The correct constitutional standard, he argued, was “Casey’s ‘substantial obstacle’ test, not the Whole Woman’s Health balancing test,” and hence Whole Woman’s Health should be overruled.27

Like Breyer’s opinion, Alito’s dissent was heavily fact-based. In his view, the opinion of the federal district judge striking down the law was based on a “thoroughly inadequate factual inquiry.” Alito found “ample evidence in the record showing that requiring admitting privileges has health and safety benefits.”28 In Alito’s view, such factual determinations are best left to legislatures, not courts.

As for the issue of precedent, Alito found the two cases “very different.” Admitting that it is “certainly true that the Texas and Louisiana statutes are largely the same,” Alito maintained that the “two cases are not.”29 This was because of factual differences between Texas and Louisiana that Judge deGravelles failed to examine. Thus, the holding in Whole Woman’s Health didn’t require the Court to invalidate the Louisiana law.

Justice Thomas agreed with all of Alito’s criticisms. He wrote separately for two reasons. First, he would have dismissed the case for lack of standing. Second, Thomas emphasized that there was no constitutional right to abortion. He concluded his dissent on these two points: “Because we lack jurisdiction and our abortion jurisprudence finds no basis in the Constitution, I respectfully dissent.”30

Justice Gorsuch also wrote a dissent. Like Alito and Thomas, he objected to the granting of standing to the doctors. In addition to misapplying the Court’s third-party standing rules, Gorsuch also argued that the Court violated other long-standing practices such as legislative deference. Like Alito, Gorsuch emphasized that the plurality assumed Whole Woman’s Health’s “fact-laden predictions about how a Texas law would impact the availability of abortion in that State in 2016 … obviously and necessarily applied to Louisiana in 2020.” In particular, he wrote that the plurality took a “remarkably static view of the market” that took no account of how hospitals might change their rules to offer admitting privileges, new

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