As a result, according to the Fifth Circuit, the June Medical Services case is totally different from the same Hellerstedt case. And so it is also constitutional.
It is hard to believe that the Fifth Circuit's opinion was even intended to pass the face-to-face test. There are two reasons for this suspicion. First, the Fifth Circuit decision was written by Judge Jerry E. Smith. Smith, appointed by Ronald Reagan, during his three decades on the bench, showed some tendencies to assume an authority not strictly mandated by his commission.
Smith was the author of a case of positive action in 1996 called Hopwood v. University of Texas. In that case, he wrote to the majority that an earlier case of the Supreme Court, Regents of the University of California v. Bakke, was no longer binding in the fifth circuit. The Supreme Court had not said so, but Smith thought the decision was wrong; nor did he think that the Supreme Court appreciated it and thought it was time for the High Court to reverse it. (In fact, the Supreme Court reaffirmed Bakke later.) Smith's self-confidence was based on megalomania in 2012 when he ordered the Attorney General of the United States to write him a letter explaining the political comments of the United States. President Barack Obama on a case that was before Smith's court, and to which Obama was not a party.
We could therefore call Smith's judicial philosophy a free wheel – or, to be more precise, lawless. In his June opinion of medical services, he essentially overturned the Supreme Court's decision in the Hellerstedt case. This level of pride probably explains the true difference between Hellerstedt and June Medical Services.
The facts on the ground in Louisiana and Texas are pretty much the same, but the facts on the ground of the Supreme Court are not. That is to say that Judge Anthony Kennedy, who provided the fifth vote in Hellerstedt, no longer sits at the Court. His seat is now occupied by Judge Brett Kavanaugh.
The message of Smith's opinion is: WWe have the votes now. Hellerstedt, then Planned Parenthood v. Casey, then Roe c. Wade, are over. I can write anything in this notice and you can not do anything about it.
Is he right? Kavanaugh's dissent may be the real news here. He notes the alleged factual discrepancy and suggests that the court should simply allow the law to enter into force. Lazy doctors might try again to get admission privileges. The state has promised not to enforce law 620 "aggressively," he says, so no one is hurt.
His argument, in essence, is as follows: Entrust your rights to a government regulator. What could go wrong? Say, this is an unusual argument for a conservative.
After the temporary suspension of Law 620, the Court has some choices. He could issue an unsigned notice stating that Hellerstedt – only three years old – is still the law. He could also grant a complete review and ask the parties to consider whether he should reconsider Hellerstedt. This would suggest a cavalier view of the previous one, but at least the Court would level with the country.