David Strauss: SCOTUS Should Discourage Fifth Circuit's Adventurism in Abortion Case

SCOTUS Needs to Reign in Lower Courts Willing to Force Its Hand by Defying Its Precedent

There is not much mystery about what is going on in this case. Some Fifth Circuit judges do not like the Supreme Court’s decision in Whole Woman’s Health, which, of course, reversed an earlier decision of the Fifth Circuit. But the composition of the Supreme Court has changed since Whole Woman’s Health was decided. So the Fifth Circuit identified some gossamer distinctions between that case and this one – essentially disregarding the district court’s findings in the process -- and upheld the Louisiana statute.

Ordinarily, this case would be a straightforward candidate for summary reversal. But of course the circumstances are not ordinary, which is why the Fifth Circuit tried to do what it did in the first place. The case involves abortion, and there is reason to believe that a majority of the Supreme Court does not think there should be a constitutional right to an abortion.

Obviously rule of law values are at stake here. But there is also a more narrowly self-interested reason for a majority of the Court to reverse in this case. The Court should not encourage – in fact, it should make it a point to discourage – the kind of adventurism shown by the Fifth Circuit here. If it does not, it can expect other courts of appeals to do the same kind of thing. And, whatever the justices’ views, that is not something they should tolerate.

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