Ken Craycraft: A Court Without Accountability?
A version of this guest post ran in the Cincinnati Enquirer on June 28th as “Abortion rights are more equal than others.”
On Monday, June 27, 2016, the United States Supreme court again weighed in on the constitutionality of States’ laws regulating access to abortion, in Whole Woman’s Health v. Hellerstedt. In so doing, the Court (1) elevated the right to abortion to extra special status, (2) allowed non-aggrieved entities to assert rights that they do not possess, and thus (3) continued its troubling trajectory of rationalizing a favored policy rather than adjudicating a case. Regardless of one’s opinion on the right to abortion, everyone concerned with the rule of law should be troubled by the Supreme Court’s results-driven activity. Obtaining a result that one desires is not worth the cost of a Court without credibility.
The case involves a law in Texas, H.B.2, that had two major provisions: first, that a physician who performs abortions must have admitting privileges in a nearby hospital; and second, that abortion clinics meet the same regulatory standards as outpatient surgical centers. The Fifth Circuit Court of Appeals, which hears cases from Texas and Louisiana, held that H.B.2 imposed no unconstitutional burden on the right to abortion. On appeal, the U.S. Supreme Court reversed, giving victory to abortion providers (not, as explained below, women seeking abortion).
First, the Court ignored the well-entrenched rule in American jurisprudence that a plaintiff cannot relitigate a claim that has already been finally adjudicated without appeal. A litigant gets one bite at the apple on a particular claim. If a court decides against it, and the litigant does not appeal, it cannot bring the same claim again in that or a different court. Yet this is precisely what happened in here. Whole Woman’s Health, an abortion provider, previously challenged H.B.2 in the Fifth Circuit Court of appeals, lost the challenge, and did not appeal to the U.S. Supreme Court. Under normal rules of jurisprudence, Whole Woman’s Health could not bring the same case a second time. Ah, but this is no normal case: this is about abortion. So, the Supreme Court ignored the settled rule, and gave Whole Woman’s Health a victory in a claim that they had forfeited their right even to bring.
Second, the Supreme Court (and the inferior courts below), allowed a non-aggrieved party to bring a claim in which it has no standing. In order to file a case in federal court, a party must have an actual claim, with actual (or, in some rare cases, imminent) harm. In constitutional jurisprudence, this usually involves a party challenging a law on the basis that the law violates some right of the party. But that is not the case here. The Supreme Court has held that women have a right to abortion, not than anyone has a right to provide it. But Whole Woman’s Health was not brought by a woman claiming that H.B.2 violated a woman’s right to abortion. Rather, the case was filed by an abortion clinic, on behalf of itself and other clinics. It is not about a woman’s right to choose, but an abortion clinic’s “right” to generate revenue. With normal issues, the Court does not allow a party to assert rights it does not possess on behalf of those who do possess such rights. But, again, this is about abortion, which the Supreme Court has elevated to super-normal status.
Third, this is yet another troubling example of the Supreme Court’s ever increasing willingness to render decisions based upon policy considerations rather than to apply the law to the facts before it. During oral argument, some justices who formed the majority in this case complained that the facts were insufficient to show that H.B.2 caused an undue burden on women seeking abortion. But, never mind. This case is about abortion; so only the outcome matters, not the facts or law.
Regardless of one’s position on the difficult question of abortion, the Court’s method of arriving at a result in this case is troubling to anyone who thinks we should be governed by predictable law, not whimsical lawyers.
Kenneth R. Craycraft, Jr., is a resident of Milford and an attorney at Craycraft Law Firm, LLC. A former professor of Moral Theology at St. Mary’s University in San Antonio, he is the author of The American Myth of Religious Freedom.
For information about the case and how it might affect Ohio’s law, click here to hear Craycaft discuss the case on the Son Rise Morning Show.
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