by Mitch Kokai
Senior Political Analyst, John Locke Foundation
The Constitution does not prohibit Louisiana from requiring abortionists to have admitting privileges in hospitals near where they operate. We know this fact from reading it; from the debates over the ratification of its provisions, none of which suggest that anyone believed that it could be used in such a fashion; and from the fact that for many decades states prohibited abortion altogether without anyone’s even alleging that they were violating the Constitution. Now five justices of the Supreme Court have conceded this obvious point.
The Court will not allow Louisiana this regulation anyway. Chief Justice John Roberts is one of the five justices who do not believe the law conflicts with the Constitution, rightly interpreted. He voted in 2016 that an identical Texas law should be upheld, and his opinion in the Louisiana case says that he still agrees with his reasoning then. Nevertheless, he claims to believe that the Louisiana law is too similar to the law that his colleagues in 2016 struck down over his dissent. The force of precedent, he maintains, requires the law to be nullified. Otherwise, Americans would lack confidence in the rule of law. It is, on the other hand, wonderfully inspiring to that confidence for a justice to strike down a law that he concedes the state had the constitutional authority to enact.
It is impossible to credit Roberts’s claim that respect for precedent dictated his decision. He has been perfectly willing to overrule precedents in the past. …
… Perhaps he believes that this decision will somehow strengthen the legitimacy of the Supreme Court as an institution above political strife. Instead, he has reinforced the impression, on all sides of our national debates, that he is the most politically calculating of the justices.