Justice Alito read aloud from his scathing dissent of the U.S. Supreme Court’s decision on Texas’ abortion law.
As to the particulars of the case, he raised the specter of Kermit Gosnell.
“If Pennsylvania had had such a requirement in force, the Gosnell facility may have been shut down before his crimes,” he said. “And if there were any similarly unsafe facilities in Texas, H. B. 2 was clearly intended to put them out of business.”
Justice Alito argues that the high court should have taken steps to “separate any bad provisions from the good,” rather than striking the whole law down:
By forgoing severability, the Court strikes down numerous provisions that could not plausibly impose an undue burden. For example, surgical center patients must “be treated with respect, consideration, and dignity.” That’s now enjoined. Patients may not be given misleading “advertising regarding the competence and/or capabilities of the organization.” Enjoined. Centers must maintain fire alarm and emergency communications systems, and eliminate “[h]azards that might lead to slipping, falling, electrical shock, burns, poisoning, or other trauma.” Enjoined and enjoined.
Justice Alito concludes that the five liberal justices ruled, not according to the law, but because of their stance on abortion.
When we decide cases on particularly controversial issues, we should take special care to apply settled procedural rules in a neutral manner. The Court has not done that here.
He continued on in even more fiery language:
“The Court’s patent refusal to apply well-established law in a neutral way is indefensible and will undermine public confidence in the Court as a fair and neutral arbiter.
Justice Clarence Thomas’ dissent is more succinct but equally apocalyptic.
“The Court should abandon the pretense that anything other than policy preferences underlies its balancing of constitutional rights and interests in any given case…”
He added: “As the Court applies whatever standard it likes to any given case, nothing but empty words separates our constitutional decisions from judicial fiat.”
We couldn’t agree more.
This decision was not constitutional. It was, as Thomas said, judicial fiat. The mask of separation of powers and federalism is gone.
We live in a dangerous time.
