Abortion Ruling Could Show Whether Supreme Court Can Still Claim Independence

By Daily Editorials

March 10, 2020 4 min read

Just three years ago, the U.S. Supreme Court struck down a Texas law that so restricted abortion clinics' medical staffing that it effectively guaranteed they couldn't function at all. Now, a Louisiana law attempting this same roundabout scheme to deny abortion rights is going before the court. Only this time, two new appointees from President Donald Trump are in place to possibly overturn the Texas decision. The outcome will demonstrate whether the principle of precedent still matters, or if this new court has become just another player in today's partisan warfare.

In 2016, the high court reviewed a Texas law requiring abortion doctors to have admitting privileges at nearby hospitals and imposing onerous, unnecessary standards on abortion clinics. Much as Texas lawmakers claimed the requirements were for patient safety, the goal clearly was to make it technically impossible to operate an abortion clinic. By a 5-to-3 vote, the high court invalidated that law as an end-run around constitutionally guaranteed abortion rights.

The court's ninth seat was vacant at the time after Justice Antonin Scalia's death early that year. Though President Barack Obama still had almost a full year left in office, Senate Majority Leader Mitch McConnell — in one of the most infamous political stunts of our time — refused to let the Senate consider an Obama nominee, saying he would instead let the next president fill the vacancy.

Let the voters decide who got to fill the seat via the upcoming presidential election, McConnell suggested. Except the Constitution gives that responsibility to the president and the Senate, not the voters. Besides, the voters already had decided, three years earlier, to give Obama that power.

McConnell's cynical play nonetheless worked. Trump won the presidency and nominated conservative Neil Gorsuch to fill Scalia's seat. Trump later named conservative Brett Kavanaugh to replace retiring Justice Anthony Kennedy, who had often been a swing voter.

The Louisiana law, similar to the Texas law that the court struck down, will test the court's new balance. If the new lineup of justices casts aside precedent and reverses a decision from just three years prior, the repercussions would be felt nationally — including in Missouri, which in 2016 passed its own restrictive law similar to the Texas law.

Justices often reflect the philosophies of the presidents who seat them, which is to be expected up to a point. Regardless of today's Supreme Court makeup, the court's decision in 2016 was the right call as a reaffirmation of precedent going all the way back to the landmark 1973 Roe v. Wade decision affirming abortion rights.

If the court now scuttles that precedent in deference to the culture wars, its majority members should refrain from pretending to be an independent branch of government and just acknowledge that they're partisan waterboys for a Republican White House and Senate.

REPRINTED FROM THE ST. LOUIS POST-DISPATCH

Photo credit: qimono at Pixabay

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