THE RIGHT TO AN ABORTION ISN’T GOING AWAY
“THEY’RE TAKING AWAY fundamental rights,” Senate Minority Leader Chuck Schumer (D–N.Y.) declared during a pro-choice rally outside the Supreme Court last spring. Turning to point at the building behind him, an outraged Schumer delivered another warning: “I want to tell you, Gorsuch, I want to tell you, Kavanaugh, you have released the whirlwind, and you will pay the price! You won’t know what hit you if you go forward with these awful decisions.”
Schumer’s vague threat against Justices Neil Gorsuch and Brett Kavanaugh, Donald Trump’s first and second Supreme Court nominees, drew a rare public rebuke from Chief Justice John Roberts. “Justices know that criticism comes with the territory, but threatening statements of this sort from the highest levels of government are not only inappropriate, they are dangerous,” Roberts said in a written statement. “All members of the Court will continue to do their job, without fear or favor, from whatever quarter.”
In addition to impinging on judicial independence, Schumer’s comments proved to be both ineffectual and unfounded. The rally where he spoke coincided with oral arguments in June Medical Services v. Russo, a constitutional challenge to a Louisiana law requiring that doctors who perform abortions have admitting privileges at local hospitals. The Court handed down its decision four months later, and it was by no means what Schumer would consider “awful.”
Gorsuch and Kavanaugh both voted to uphold Louisiana’s law, undeterred by Schumer’s threat. But five justices, including Roberts, concluded that the law was inconsistent with the Court’s abortion precedents and therefore could not stand.
On the face of it, that conclusion was hardly surprising, because just four years earlier the Court had overturned a very similar Texas law in Whole Woman’s Health v. Hellerstedt. But by the time Schumer warned that abortion rights were about to be extinguished, Justice Anthony Kennedy, who joined the majority in Whole Woman’s Health, had been replaced by Kavanaugh. Since Roberts had dissented in the Texas case, Schumer perceived a new majority hostile to the Court’s landmark 1973 decision in Roe v. Wade, which held that the Constitution protects a woman’s right to obtain an abortion.
Schumer did not count on Roberts’ respect for precedent. “I joined the dissent in and continue to believe that the case was wrongly decided,” Roberts wrote in his concurring opinion. requires us, absent special circumstances, to treat like cases alike. The Louisiana law imposes a burden on access to abortion just as severe as that imposed by the Texas law, for the same reasons. Therefore Louisiana’s law cannot stand under our precedents.”
