Top 7 quotes from dissenting opinions in the June Medical abortion case

by Thomas M. Messner, J.D.

On June 29, 2020 the U.S. Supreme Court ruled 5-4 against a Louisiana law requiring abortionists to have admitting privileges at a hospital within 30 miles of where they perform the abortion.

Justice Breyer announced the judgment of the Court and delivered an opinion joined by Justices Ginsburg, Sotomayor, and Kagan.

Chief Justice Roberts concurred in the judgment of the Court, thus providing the 5th vote against the law.

Justices Thomas, Alito, Gorsuch, and Kavanaugh dissented, with each writing separate dissenting opinions. Justice Gorsuch joined all of Justice Alito’s dissenting opinion and Justice Thomas and Justice Kavanaugh joined parts of it.

Here are 7 of the top quotes from today’s dissenting opinions.

1. “Both the plurality and the Chief Justice hold that abortion providers can invoke a woman’s abortion right when they attack state laws that are enacted to protect a woman’s health. . . . [T]he idea that a regulated party can invoke the right of a third party for the purpose of attacking legislation enacted to protect the third party is stunning. Given the apparent conflict of interest, that concept would be rejected out of hand in a case not involving abortion.” (Alito)

2. “Those in today’s majority never bother to say so, but it turns out that . . . [the Louisiana] admitting privileges requirement for abortion providers tracks longstanding state laws governing physicians who perform relatively low-risk procedures like colonoscopies, Lasik eye surgeries, and steroid injections at ambulatory surgical centers.” (Gorsuch)

3. “[Kermit] Gosnell had a medical license, but it is doubtful that any hospital would have given him admitting privileges.” (Alito)

4. “When judges take it upon themselves to assess the raw costs and benefits of a new law or regulation, it can come as no surprise that ‘[s]ome courts wind up attaching the same significance to opposite facts,’ and even attaching the opposite significance to the same facts. It can come as no surprise, either, that judges retreat to their underlying assumptions or moral intuitions when deciding whether a burden is undue. For what else is left?” (Gorsuch, citing earlier opinion).

5. “To arrive at today’s result, rules must be brushed aside and shortcuts taken. While the concurrence parts ways with the plurality at the last turn, the road both travel leads us to a strangely open space, unconstrained by many of the neutral principles that normally govern the judicial process. The temptation to proceed this direction, closer with each step toward an unobstructed exercise of will, may be always with us, a danger inherent in judicial review. But it is an impulse this Court normally strives mightily to resist. Today, in a highly politicized and contentious arena, we prove unwilling, or perhaps unable, to resist that temptation. Either way, respectfully, it is a sign we have lost our way.” (Gorsuch)

6. “The Court’s current formulation of the stare decisis standard does not comport with our judicial duty under Article III which requires us to faithfully interpret the Constitution. Rather, when our prior decisions clearly conflict with the text of the Constitution, we are required to ‘privilege [the] text over our own precedents.’ Because Roe and its progeny are premised on a ‘demonstrably erroneous interpretation of the Constitution,’ we should not apply them here.” (Thomas, internal quotations and citations omitted)

7. The Supreme Court “created the right to abortion out of whole cloth, without a shred of support from the Constitution’s text. Our abortion precedents are grievously wrong and should be overruled.” (Thomas)