The Court Randomly Changes Methodology to Meet Political Ends

In recent writings I have talked about the issues associated with elevating Fundamental Rights as well as the Court using personal opinions to draw up methodologies to produce the favored political result. The 2016 decision between Whole Women’s Health v. Hellerstendt is a good example of such a case. In this case, the majority held that a Texas statute aimed at increasing the safety of women having abortions was unconstitutional because it created “an undue burden on abortion access”. The Court struck down every provision and failed to sever provisions that were constitutional (a common Court practice) especially for laws written specifically with a severability clause. In essence the Court found provisions that patients “be treated with respect, consideration, and dignity” and patients should not be given any “misleading” information, and facility fire safety codes must be up to date are examples of provisions of the law that were found unconstitutional. Why? Because the majority held determining the constitutionality of all clauses in the statute would be too burdensome. Justice Breyer’s opinion is so bad it contains the following statement “determined wrongdoers, already ignoring existing statutes and safety measures, are unlikely to be convinced to adopt safe practices by a new overlay of regulations.” This statement basically rules out the need for any regulations of any kind. Why place gun regulations on felons if they will refuse to abide by such regulations? This is a dangerous statement. Justice Ginsberg concurring opinion states: “When a State severely limits access to safe and legal procedures, women in desperate circumstance may resort to unlicensed rogue practitioners.” This “may” or “may not” be the case because these facts were not in evidence. Justice Ginsberg is merely injecting personal opinion. This should not happen in any case, let alone in a case being heard in the highest court of land.

What is important to focus on in this case is Justice Thomas’s dissent because he points to all that is wrong with the Court’s methodology in evaluating complicated cases such as this one on abortion. First, Thomas points out that the Court “invented” the “undue burden” standard for evaluating abortion cases in Planned Parenthood v. Casey (1992). However, this case rewrites the “undue burden” standard developed in Casey in several ways. For example, the Court in Whole Women’s Health “balances benefits with burdens” which it did not do in Casey. Another new wrinkle in the Whole Women’s Health decision is for the first time the Court fails to leave medical science regulations up to the legislators who confer with medical professionals. Finally, states have always been given the benefit of the doubt if it acts in a rational way then they are not imposing an undue burden. Thomas points out that “The majorities undue-burden test looks far less like our Casey precedent and far more like the strict-scrutiny standard that Casey rejected.” In other words, the majority had to find a way to strike down this law and had to change their own precedent and rules to do so (Breyer wrote the majority opinion and heard both cases). This decision is dangerous for many reasons. First, “the majority reappoints this Court as ‘the country’s ex-officio medical board with power to approve and disapprove medical and operative practices and standards throughout the United States.” Hence, the ever growing power of the monopolized government gets bigger and more powerful with this decision.

Secondly, Thomas points out that many standards created by the Court over the decades are becoming increasingly “meaningless formalism”. Some of the standards used by the Court are strict scrutiny, intermediate scrutiny, closest scrutiny, rational basis, and undue burden to name a few. Thomas says “As the Court applies whatever standard it likes to any given case, nothing but empty words separates our constitutional decisions from judicial fiat.” Moreover, the Court uses these standards randomly even though “The Constitution does not prescribe tiers of scrutiny.” The “Court has a tendency to relax purportedly higher standards of review for less-preferred rights.” By incorrectly elevating abortion as a Fundamental Right in Roe v. Wade (1973) it has force the Court to transform “the tiers of scrutiny into an unworkable morass of special exceptions and arbitrary applications.” Thomas concludes by saying “Unless the Court abides by one set of rules to adjudicate constitutional rights, it will continue reducing constitutional law to policy-driven value judgments until the last shreds of its legitimacy disappear.”

Finally, the Court "Ordinary [does not allow] plaintiffs filing suits to vindicate constitutional rights of others." No women had filed suit against the new abortion safety regulations.

Bravo to Thomas, he is the only Justice interpreting the Constitution as it should be: through its text. Without the text the document has no limits. Interpreting the Constitution differently is just opinion, policy making, and making up the law as you go. The Court’s ad-hoc way of deciding cases needs to go, it is unfair to the people and the states.