June Medical Services v. Russo

Floor Speech

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Mr. LEE. Madam President, that was the first error that I think deserves to be mentioned in this context--the error apparent in the fact that the Supreme Court ignored the fact that the plaintiffs before the Court lacked standing. They just glossed over this issue. Why? Well, because it involves abortion, and I guess abortion is different.

The explanation provided by the plurality and by the Chief Justice-- understanding that in order to form a majority, sometimes you have to cobble together a concurring opinion with a plurality opinion, and that is what happened here.

Their analysis on the standing issue in this case simply doesn't wash. It doesn't add up. In fact, I believe it defies what every first- year law student is taught in American law schools. It doesn't work.

Secondly, this draws attention to another problem with the Court's jurisprudence in this area. When abortion is treated differently than other things, it leads to a fair amount of tail-chasing by the Court because the Court has stepped in--starting with Roe v. Wade and continuing with Casey and the other cases since then on this topic--the Court has stepped in essentially as a superlegislative body, and it has attempted to set out a rule saying that you can't undermine what the Court has declared to be a right to access abortion.

So let's set aside, for a moment, that question of what we would be looking at if we were dealing with a law prohibiting abortion, but this isn't that. Again, this was a law, Act 620, adopted by the Louisiana State Legislature that simply required that doctors and clinics performing abortions be run by doctors having admitting privileges at a hospital within 30 miles.

It is not an abortion ban. It is just a public health and safety regulation of the same sort that you might see in effect with respect to surgical centers or other outpatient treatment clinics throughout that State.

And so, nonetheless, you have got Roe v. Wade and its progeny in which the Supreme Court has stepped in, basically, as a superlegislative body saying you can't impose too heavy of a burden on a woman's access to or ability to obtain an abortion.

The problem with that is there is nothing in the Constitution that says that. There is nothing in the Constitution that makes this a Federal issue. There is nothing in the Constitution that takes what is essentially a legislative judgment; namely, the legality or lack thereof of a particular medical procedure and makes it a question not only of Federal constitutional law but of Federal constitutional law that can be written and then addressed and then allowed to evolve solely within the hermetically sealed chamber of the Supreme Court of the United States.

This is what produces this kind of tail-chasing. This is what produces this nonsense, and it is also, by the way, what produces a whole lot of the political vitriol and venom surrounding the Federal judiciary.

Why? Well, because they exercised will instead of judgment. What do I mean by that? Well, in Federalist No. 78, Alexander Hamilton referred to the difference between what lawmakers do and what judges do. In the legislative branch, they exercise what Hamilton referred to as ``will,'' meaning they decide what the law should be. They adopt policy. They say: We think the law should say x, and they have the ability to do that. Under our system of government, article I gives the lawmaking power, the power to engage in exercises of will, to the legislative branch.

Judgment, by contrast, is what is wielded by the judicial branch. Judgment asks not what should be but what is and, most notably, what has been. It looks, as it were, in the rearview mirror, looking at what the law said as of a particular moment in time.

So it is the job of the jurist not to say what the law should be but, instead, to say what the law is and only when the question of what the law is comes properly before the court's jurisdiction in cases or controversies between multiple litigants properly before the court's jurisdiction.

And so Hamilton explained in Federalist 78 that there is a difference between will and judgment and that you don't ever want the judicial branch exercising will.

Well, why? Because, among other things, it is not their job. Judges are appointed in our Federal system for life so long as they are on good behavior. They are not subject to elections, ever. You don't get elected to get on the court; you don't get elected to stay on the court. You are on there for life.

Why? Well, because your job is a relatively limited one. It looks only in the rearview mirror. Your job is not to set policy but to interpret in very narrow circumstances.

In this circumstance, in Roe v. Wade and its progeny, the Supreme Court stepped in and exercised will. As a result, they have taken decisions away from lawmakers--State and Federal lawmakers alike--for decades.

This has had the predictable result of making a lot of people unhappy at every point along the political continuum--every single point.

Why? Well, because they exercise will instead of judgment. They exercise legislative jurisdiction rather than judicial discretion.

Justice Thomas, in his dissenting opinion in June Medical Services v. Russo, said, referring to Roe v. Wade and its progeny:

[T]hose decisions created the right to abortion out of whole cloth, without a shred of support from the Constitution's text. Our abortion precedents are grievously wrong and should be overruled.

Justice Thomas wrote in a separate passage, explaining that ``Roe is grievously wrong for many reasons, but the most fundamental is that its core holding--that the Constitution protects a woman's right to abort her unborn child--finds no support in the text of the 14th Amendment.''

So we see that the Court was wrong in pretending that the plaintiffs in that case, not patients, not women who wanted to seek abortions but couldn't, but doctors and clinics who have an interest potentially adverse to their own patients who didn't want to be regulated, were allowed to assert standing as if it were their constitutional injury that were at stake, and it was not. The Court went on to compound the problem by continuing to apply the statutory, effectively legislative, proscriptive framework of Roe and its progeny, which itself finds no support--not in the Constitution, not in Federal statute, not in 400 years of Anglo-American judicial precedent, not in common law. They just made it up, and they said it is important. We, therefore, deem it to be part of the Constitution. These are the first two errors.

There is a third error I want to call out from the Supreme Court's unfortunate and very wrong ruling in June Medical Services v. Russo. The third category of error that is built into this decision relates to the standard by which a court deems something unconstitutional. Separate and apart from the standing issue, separate and apart from the fact that Roe was a made-up doctrine, there is also a problem in that the Court didn't approach this constitutional question the same way that it is supposed to address all other constitutional questions.

Under a well-worn line of cases, including a case called United States v. Salerno, the Supreme Court, with only very rare exceptions-- not relevant, not present here--does not declare a statute facially unconstitutional unless that statute is alleged and proven to have been unconstitutional in all of its potential applications.

Let's break that down into more common language. You can't just walk into court and say that a particular law is categorically unconstitutional; you have to wait until that law is unconstitutionally applied to you. That is called an as-applied challenge. As-applied challenges are the norm, the rule, and they are the default. In almost all cases, that is how you get something deemed unconstitutional, is through an as-applied challenge; that is, the Court doesn't just strike it down in its entirety.

But it is striking down the law in its entirety that the Court did here--that the Court was asked to do here and that the Court, in fact, did here under circumstances in which the law had not even yet been implemented and had never been enforced--not once. They didn't even wait to see if it could be or would be or might be implemented in a manner consistent with the text and history and structure of the U.S. Constitution. They just walked in and said: The whole thing is unconstitutional. Get rid of it.

Why is that a problem? It does matter. It matters because ours is a system of rules and laws. It is based on the constitutional text. Yes, precedent factors into it, but precedent can't be the inexorable command.

In any event, precedent here went the other way with respect to the standard by which you deem something unconstitutional in all of its applications.

As Justice Gorsuch explained in his separate dissent, ``In effect, the standard for facial challenges has been flipped on its head: Rather than requiring that a law be unconstitutional in all of its applications to fall, today's decision requires that Louisiana's law be constitutional in all of its applications [in order] to stand.''

In other words, as Justice Gorsuch explained, they applied a completely different set of rules here. Why? Well, simply because this involves abortion, and abortion is different. Somehow abortion-- notwithstanding the fact that it makes no appearance in the Constitution--somehow abortion is treated differently. Now abortion is treated differently even in this separate line of cases, even in this separate line of precedents dealing with facial challenges versus as- applied challenges.

If, in fact, the Supreme Court is going to stick to stare decisis, the principle invoked over and over and over again in that frankly awful decision yesterday, for which the Court should be ashamed, stare decisis is the principle that basically says: We as a court, once we have decided something one way, are going to continue to follow that precedent most of the time unless we really really don't want to.

That is, in essence, what stare decisis means. They invoked stare decisis over and over and over again in that case and said that is just how it had to be because, well, stare decisis requires that.

Well, they didn't follow stare decisis. They didn't follow their own precedent when it comes to their standing docket. They didn't follow their own precedent. They didn't adhere to stare decisis when it comes to United States vs. Salerno. They utterly ignored the fact that this is a case in which the statute invalidated by the Supreme Court of the United States yesterday is capable of being applied in a fully constitutional manner.

By the way, they made a number of assertions about the factual record of the case and about the effect of Louisiana's Act 620 that are simply wrong. They invalidated this law by saying: Look, the Louisiana Legislature claims that this Act 620 was put in place in order to protect women's health. We don't really think that is the case. We don't think they have met that standard here.

First of all, in doing that, they ignored precedent applicable in literally every other scenario in which they defer substantially to the determinations of a legislative body in deciding whether the law that they are passing in fact will have the effect that they want, especially in an area like public health and safety. They ignored the fact that they had abundant testimony before the Louisiana Legislature supporting the basis for what they were doing.

In Justice Gorsuch's dissent, he referred to multiple pieces of information before the legislature. He pointed out that one woman testified that while she was in an abortion clinic after having a procedure and she was hemorrhaging, her abortion provider told her: You are on your own. Get out.

Eventually, the woman went to the hospital, where an emergency room physician removed fetal body parts that the abortion provider had recklessly left in her body.

Another patient who complained of severe pain following her abortion was told simply to go home and lie down.

In another case, a clinic physician allowed a patient to bleed for 3 hours even though a clinic employee testified that the physician would not let her call 911 because of a possible media involvement. In the end, that employee at that clinic called 911 anyway, and emergency room personnel, upon the arrival of that patient, discovered that the patient had a perforated uterus and, as a result, needed a hysterectomy

A different physician, speaking to the Louisiana State Legislature in connection with their deliberations on Act 620, explained that she routinely treats abortion complications in the emergency room when the physician who performed the abortion lacks admitting privileges. In the experience of that physician, ``The situation puts a woman's health at an unnecessary unacceptable risk that results from a delay of care and a lack of continuity of care.''

It was on this basis that the Louisiana State Legislature concluded that having admitting privileges would help to contain these risks and help protect women because a physician--the same physician who performed that procedure, if he or she has admitting privileges in a hospital within 30 miles of the abortion clinic in question, would be the physician in the very best position to treat that patient.

So, yes, could reasonable minds reach different conclusions as to the exact set of regulations applicable to an abortion clinic or any other type of healthcare clinic? You bet. There are a lot of ways to get at the same issue. There are a lot of ways to protect human health and safety. It is not the job of the Supreme Court of the United States to decide exactly how those laws are written in Louisiana. And make no mistake--that is what the Supreme Court did here. They might as well have removed their robes and pretended simply to be lawmakers. What they are doing is that blatant, and it is very wrong.

There is, moreover, a connection between this logical disconnect that I refer to and the fact that the standing analysis that I alluded to earlier shows something else that the Supreme Court did wrong. This shows that the very same concerns that the Louisiana Legislature had on behalf of the patients--the would-be victims of medical malpractice at many of these abortion clinics--are concerns that were not present before the Court. They were not represented among the plaintiffs in that case. That is yet another reason why the Supreme Court of the United States acted lawlessly, in a shameful manner, in the June Medical Services case.

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Mr. LEE. I have great appreciation and respect for my colleague, the Senator from Washington, and yet I can't look at this 125-page bill we saw for the first time yesterday evening without thinking that hardly enough time has passed since this legislation was introduced to even read the bill, let alone to mark it up in committee or bring it up on the Senate floor and have it passed here.

Even though Congress has acted to provide emergency assistance in response to the current global pandemic, this legislation includes significant additional spending for a number of programs that have not been debated in the Senate. This bill would also create at least one new program, and I say ``at least,'' because, again, we are still trying to figure out what is in it. It creates at least one new program, the Community College and Industry Partnership Grants Program. I am sure this would do a number of good things, but, again, this thing is not ready for prime time. This program is, as far as I can tell, largely duplicative of existing programs. This legislation would provide $2 billion for it anyway.

A bill of this length and a bill that provides for billions of dollars in new spending should not--I would hope would never--be passed this quickly. The Senate should take the time to thoroughly weigh the changes proposed in this legislation.

There are many individuals across the country steadfastly fulfilling their occupational duties to care for and otherwise help those who have the coronavirus. It is important that those individuals take precautions for their safety and for the safety of other people who happen to be around them. However, the bill under consideration, the bill that is the subject of this unanimous consent request, poses several problems.

First of all, it does not respect the fact that States, localities, and businesses are far better suited than the Federal Government to determine what safety standards might be needed. Instead, the legislation forces State governments to adjust their current plans to protect workers to meet standards determined by some administrative bureaucracy in Washington.

This action is burdensome, and a one-size-fits-all approach to protecting healthcare workers on the frontlines will not work. The reason it will not work is that our frontlines differ across the Nation. States must be permitted the flexibility to enact their own standards based on the needs of each State.

Further, the temporary protection standards for the bill are not truly temporary. They are described as such, but they are not, as the bill calls for permanent standards to be made based on the initially temporary standards to be determined by OSHA.

Finally, the bill broadly subjects all employees at risk of occupational exposure to the emergency standards to be promulgated by OSHA. This means that potentially every worker in every industry could be subjected to these requirements even though each industry has its own unique challenges that need to be addressed. So this broad-brush approach could limit the ability of certain individuals to work during this time even though they might actually be in a good position to do so safely.

It is critically important for our healthcare workers to be protected in a time of crisis, but the most effective way to accomplish that is by continuing to allow States, localities, healthcare facilities, and businesses to set safety standards and to ensure that those who can safely work have the ability to do so.

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Mr. LEE. Mr. President, it is with sadness, concern, and deep disappointment that I come to the floor to acknowledge something very unfortunate that happened just last night in my own hometown of Provo, UT. A group of people were gathered in downtown Provo to protest, to express concern over matters important to them.

At one moment, a car approached University Avenue, preparing to turn right on to Center Street. As that car approached, the car was surrounded by people who were engaged in acts of protests. The car tried to pull through the intersection very slowly, being cautious, and not to move into anyone.

The protesters continued to gather around the car. In the middle of all of this, the driver of that car was shot--was shot--by one of the protesters who was armed, who, according to the video that I saw, looked right into the vehicle and shot into the passenger side window with a gun.

According to eyewitness accounts, after the driver then pulled away from the intersection, trying to get away, the person with the gun fired yet again as the driver was driving away. Moments later, the driver arrived at Utah Valley Regional Medical Center, seeking medical attention. My thoughts and prayers are with that victim and the victim's family

I am saddened that we have to be having this conversation at all, but it is something that has come to so many communities around America. These are protests, in some cases, turning into riots that have visited communities--urban and rural and suburban alike.

In many instances, people have come to those protests in order to vocalize concerns that they have with their government--concerns, perhaps, about law enforcement policy or personnel. In some cases, some protests have been carried out without violence and without incident.

A few weeks ago, I came to the floor of the U.S. Senate to talk about one such gathering in Ogden, UT, where people gathered to express their objections to what happened to George Floyd in Minneapolis about a month ago. They did so in the immediate wake of the killing of a police officer in Ogden. They dual-tracked their expressions of emotion and of concern, expressing support and appreciation to the fallen officer who had given his life enforcing the law and trying to protect his fellow Utahns, his fellow American, his fellow residents of Ogden, while at the same time protesting against what happened to George Floyd in Minneapolis.

They protested in a way that reflected well on this country, on the city of Ogden, and on the State of Utah. They left with not a scrap of trash left in the streets. Perhaps far more importantly, they left the scene without having harmed anyone or anything, without destroying property.

Yes, the American people have the right peaceably to assemble and to express their views without fear of retribution from their government. But, no, that does not encompass the right to harm other people, and, no, that does not encompass the right to engage in acts of lawlessness, whether for the purpose of destroying property or life simply because one is concerned about something.

This violence has to stop. This isn't who we are. It is important also to remember that whenever we voice concern about something in government, we remember that you can't expand government without strengthening government--the same government entity that provides law enforcement officers, the same government entity that collects taxes, that runs any government program. So we do have to keep in mind exactly what it is that we want.

There are many instances that I have observed as a lawyer, as a former prosecutor, and as a citizen in which police authority has been abused. I unequivocally condemn all such abuses. That is the very reason we have a Constitution in place to limit the power of government, of individual officials running them--government entities.

When you send law enforcement in to address a particular situation, you are not doing that for the purpose of persuasion; you do it for the purpose of force. That is the one tool that government has that is uniquely government's. It has the power of force. It is official, collective force. That is what government is.

I hope and I expect that our conversations about this will focus on how force is used by government--where it ought to be entrusted in government, where it shouldn't. I hope, also, we can look to any of the true underlying causes of some of these abuses.

I hope and expect that we can address why on Earth was it that the man who killed George Floyd apparently had 17 complaints filed against him without formal disciplinary action ever having been taken against him. Why and how did this happen? What sort of cabal was it that was protecting him from discipline?

I hope and expect that we can have those conversations, but I hope and expect that we as a country can come together in condemning violence--lawless violence in all of its forms. Whether it is against persons or property or a combination of the two, we are better than that. Don't dress it up in the flag. It doesn't belong there. Don't dress it up in the First Amendment. The First Amendment protects our right peaceably to vocalize our concerns, peaceably to assemble--not lawlessly and, certainly, not violently.

If this can happen in Provo, it can happen anywhere. You don't want it to happen in your community, not in any community. I hope and expect that in the coming days we can come together as a Senate and adopt sense of the Senate legislation unequivocally condemning violence undertaken in a lawless fashion. Regardless of the motivation of those involved in it, it is wrong, and it must never be tolerated--not in this country, not on our watch.

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