A Judicial…Misunderstanding

The Supreme Court has struck Louisiana’s abortion law that required doctors to have admitting privileges at a nearby hospital before they could be permitted to carry out abortions. The ruling was by a 5-4 vote; the five hung their ruling on the Court’s 2016 Whole Woman’s Health decision holding that there were “no medical benefits” to such a requirement, and so “a woman’s constitutional right to end a pregnancy” was circumscribed.

One of the five was Chief Justice John Roberts.

Here’s his rationalization for his vote:

I joined the dissent in Whole Woman’s Health and continue to believe that the case was wrongly decided. The question today however is not whether Whole Woman’s Health was right or wrong, but whether to adhere to it in deciding the present case.


If the decision being used as precedent was wrongly decided, the correct response is to overrule that precedent and correct the error, not to flip and bureaucratically uphold the error and, by doing so, codify it.

Codifying error as precedent also has a strong whiff of legislating from the bench.

With his logic, maybe Roberts would have argued against going to war to overrule a Dred Scott, or argued against altering Plessy.

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