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Monday, June 27, 2016

The Supreme Court Oversteps Once Again

Let's assume that the law of a state says that only a doctor licensed by the state can perform surgery.  I think that essentially everyone would agree that setting that rule in place is within the power of the state government.

Let's assume that the laws of that state also set some rather high standards for just who can get a medical license.  It requires a college degree, a med school degree, plus internship and passing a test developed by the board of medical licensing.  Again, essentially everyone would agree that such a rule is well within the power of the legislature.

Now let's add a law that says that any hospital in the state must have an emergency room staffed with certain types of doctors and nurses at all times.  The emergency room is also required by law to have certain types of equipment such as the tools needed to deal with a heart attack.  This is another of those laws that clearly would be within the power of the state to enact.

So let's add something else.  Let's say that the state also has a law requiring all surgery to be performed in a licensed hospital.  These hospitals are regularly inspected and must pass standards for the quality of care provided, the staffing and equipment at the facility and the cleanliness of the facility.  Again, there are few people who would argue that such a law is beyond the power of the state.

Suppose, however, that there are rural areas in the state where there are no licensed hospital.  Let's say there is an entire country which is home to 2000 people and that there are no hospitals there.  In fact the closest hospital is 50 miles away.  Does that change anything?  Must the rules governing the requirement that surgery is to be done at a hospital be modified because the people in certain areas would have to travel to get that surgery?  This is where it starts to get interesting.  Certainly, that is something that has to be considered, but who gets to make that decision?  Our system (and the Constitution) provide an undisputable answer; the decision belongs to the people and their representative in the legislature.  If the voters are unhappy with the decision, they can replace their legislators at the next election.  The courts have no role at all in making that decision.

But now make the surgery being performed an abortion and suddenly all of this changes according to the Supreme Court.  The Court has no problem stepping into a decision which ought to be made by the legislature.  The Texas law requiring doctors doing abortions to have admitting privileges in a nearby hospital has been struck down in a 5-3 decision.  It puts too much of a burden on a woman's right to abort her child.

In the example I set forth above, the limitations on the performance of surgery could limit the ability of citizens to get the treatment that they need.  In other words, those limitations on surgery and on the licensing of doctors might mean that some people could die because they just couldn't get treatment.  Even the Supreme Court would agree that the right to continue living is more important than the right to abort a child.  (At least, those two rights are of equal weight, even for the Court.)  Nevertheless, the Court has chosen to jump into a dispute where it has no right to say anything.  This is not a legal decision; rather it is a political decision.  It is just the sort of thing that the courts have no business doing.

Look, I am not arguing now that the Texas limits on abortion providers are good or bad.  That's a different discussion.  I am saying, however, that however that discussion comes out, the ones to make the choice are the legislators and not the courts.

Last week the Supreme Court stopped president Obama when he exceeded his constitutional power by trying to rewrite the immigration laws without action by Congress.  Today, the Supreme Court has exceeded its power in a very substantial way.  Who is going to correct that?

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