Texas’s H.B.2 statute imposed regulations that yielded no health benefit but made abortion a lot harder to get. The Supreme Court wasn’t fooled.
“We are supposed to be a neutral court of law,” Justice Samuel Alito told the relatively sparse audience at the Supreme Court’s final session Monday. “When it comes to ordinary legal rules … there is no justification for treating abortion cases differently from others.” Alito’s words were the opening of an angry bench dissent from the Court’s 5-3 decision in Whole Woman’s Health v. Hellerstedt, a blockbuster win for the forces of choice.
As a lawyer, I can sympathize with Alito’s sentiment. Good old “ordinary legal rules”! Life would be great if I could just go around muttering, “A waiver of assignment also operates as a waiver of sublease,” or “A standard-form contract is construed strictly against the drafter.” But abortion cases are constitutional, not legal, cases. Constitutional law operates (as it must) under its own rules. And even within the world of constitutional cases, abortion has always been judged under special judge-made standards that bear little resemblance to maxims of the common law.