The Supreme Court just delivered the narrowest, most temporary victory for abortion rights. Though Chief Justice John Roberts, a conservative who votes fairly consistently to uphold abortion restrictions, cast the key fifth vote to strike down a Louisiana anti-abortion law, his opinion makes it clear that his views about abortion haven’t changed.
The best reading of the Court’s decision in June Medical Services v. Russo is that Roberts just gave the constitutional right to an abortion a potentially very brief reprieve. And he did so largely because Louisiana presented the weakest possible case in June Medical.
As Justice Stephen Breyer notes in his plurality opinion, June Medical involves a Louisiana law that is “almost word-for-word identical” to a Texas law the Supreme Court struck down four years ago in Whole Woman’s Health v. Hellerstedt (2016). Both laws require abortion providers to obtain admitting privileges at a hospital near the clinic where they perform abortions in order to continue to provide them — a credential that is very difficult for abortion providers to obtain and that does little or nothing to improve health outcomes.
The Court voted 4-1-4, with Justice Stephen Breyer writing a plurality opinion for himself and his three liberal colleagues, and Roberts writing a separate opinion emphasizing the narrowness of his approach to this case.
Only one thing has changed between June Medical and Whole Woman’s Health. Justice Anthony Kennedy, a relatively moderate conservative who cast the key fifth vote to strike down the Texas law, is no longer on the Court. And his replacement, Justice Brett Kavanaugh, opposes abortion rights. Kavanaugh dissented in June Medical.
So abortion opponents apparently bet that the replacement of Kennedy with Kavanaugh would allow them to litigate Whole Woman’s Health all over again — but with a different result. They bet wrong.
The fact that June Medical is almost entirely identical to Whole Woman’s Health forms the basis of Roberts’s opinion. “I joined the dissent in Whole Woman’s Health and continue to believe that the case was wrongly decided,” the chief justice writes. Nevertheless, “the question today however is not whether Whole Woman’s Health was right or wrong, but whether to adhere to it in deciding the present case.”
Ultimately, Roberts concludes that the principle of stare decisis — the doctrine that courts should generally be bound by their prior decisions — compels him to strike down Louisiana’s law. “The result in this case is controlled by our decision four years ago invalidating a nearly identical Texas law,” Roberts concludes.
As a practical matter, that means the constitutional right to an abortion is likely to survive for at least another year or two. But Roberts also signals that he’s open to a lawsuit challenging this right on other grounds….
Roberts opens his opinion by declaring that he still believes that Whole Woman’s Health was “wrongly decided.” He notes that “neither party has asked us to reassess the constitutional validity” of the Court’s seminal abortion rights decision in Planned Parenthood v. Casey (1992) — a hint that, if future litigants directly attack Casey, Roberts will welcome such a challenge. And he spends as much of his opinion attacking Breyer’s approach to this case as he does explaining why he reluctantly voted to honor stare decisis.
Whole Woman’s Health, Roberts notes, states that “the rule announced in Casey … requires that courts consider the burdens a law imposes on abortion access together with the benefits those laws confer.” But balancing these burdens against these benefits, Roberts suggests, is entirely beyond the capacity of the judiciary.
In this context, courts applying a balancing test would be asked in essence to weigh the State’s interests in “protecting the potentiality of human life” and the health of the woman, on the one hand, against the woman’s liberty interest in defining her “own concept of existence, of meaning, of the universe, and of the mystery of human life” on the other. There is no plausible sense in which anyone, let alone this Court, could objectively assign weight to such imponderable values and no meaningful way to compare them if there were. . . Pretending that we could pull that off would require us to act as legislators, not judges, and would result in nothing other than an “unanalyzed exercise of judicial will” in the guise of a “neutral utilitarian calculus.”
In this sense, Roberts’s opinion harks back to Justice Bryon White’s dissenting opinion in Roe v. Wade (1973) itself, which similarly argued that courts are not competent to weigh the difficult moral questions presented by the abortion debate. “In a sensitive area such as this, involving as it does issues over which reasonable men may easily and heatedly differ,” White wrote in that dissent, courts should leave the question of abortion rights “with the people and to the political processes the people have devised to govern their affairs….”
The above comes from a June 29 story on Vox.