The rules are different for abortion cases. In striking down Texas’s regulations on abortion providers, the Supreme Court in Whole Women’s Health v. Hellerstedtvirtually abandoned the principle of res judicata, which holds that plaintiffs don’t get to relitigate issues merely because they don’t like the result. Howard Slugh explains how that happened: “Soon after losing their first case, the plaintiffs brought a second lawsuit. This time, they did not include a statewide challenge to the admissions requirement.
In his dissent, Justice Alito notes that including such a subsequent challenge would have been so frivolous as to open the plaintiffs’ attorneys to sanctions. However, the district-court judge unilaterally added the impermissible claim to the lawsuit. […] Normally, the Supreme Court would have reversed the lower court, and it would not even constitute a close call. Unfortunately, anyone who expects the normal rules of law to apply in abortion cases will face constant disappointment.
In order to justify departing from the normal rules, Justice Breyer relied, at least in part, on an unprecedented argument. He claimed that where ‘important human values’ are at stake, the normal rules of res judicata are weakened. Apparently, abortion is the first “important human value” to ever come before the Court.”
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