The Louisiana law that was at stake in June Medical embodies the anti-abortion movement’s strategy over the past decade. For at least the past 10 years, activists have pushed state-level regulations on abortion clinics. These restrictions are ostensibly designed to protect the health and safety of women. “The vast majority of Americans support patient-protection laws because they recognize that abortion practitioners should meet the same standard of care as any other physician,” Catherine Glenn Foster, the president and CEO of Americans United for Life, one of the national groups leading this effort, told me. When the Court considered a Texas law along these lines in Whole Woman’s Health v. Hellerstedt, however, it found that it placed an undue burden on women seeking abortions. June Medical Services effectively asked the new conservative majority on the Court to overturn precedent, effectively giving a green light to anti-abortion activists who have worked to restrict abortion at the state level.
[ Read: The Supreme Court will soon test its commitment to abortion rights ]
The composition of the Court appeared favorable to the challenge. Roberts voted with the minority in Whole Woman’s Health. And the new justices on the Court, Brett Kavanaugh and Neil Gorsuch, are both conservatives who have written passionately about the importance of religion in America and have expressed skepticism of the Court’s record on abortion rights. Despite these shared views on abortion jurisprudence, Roberts has recently been concerned about the Court’s partisan appearance. “I’ve always thought this [case] was a particularly difficult ask for Roberts, who has been very public about his concern for the Court’s reputation and institutional legitimacy,” Mary Ziegler, a law professor at Florida State University and the author of Abortion and the Law in America: Roe v. Wade to the Present, told me. In 2018, Roberts went as far as to rebuke the president’s claim that judges can be relied on to vote a certain way simply because of who appointed them: “We do not have Obama judges or Trump judges, Bush judges or Clinton judges,” he told the Associated Press. Cases concerning abortion are arguably the ultimate test of this principle. “It is a challenge for him, in this case, as many people would react to a Louisiana victory by accusing the Court of being an appendage of a political party,” Cary Franklin, a law professor at the University of Texas, told me.
In an opinion concurring with the majority decision, which was written by the liberal-leaning Justice Stephen Breyer, Roberts was explicit that he is not defending abortion rights. He is defending the Court. “I joined the dissent in Whole Woman’s Health and continue to believe that the case was wrongly decided,” he wrote. “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.” The legal doctrine of stare decisis, which means “to stand by things decided,” requires courts to treat similar cases alike, he wrote. Otherwise, it’s difficult for Americans to know what the law actually says. While Louisiana had argued that the facts of this case were substantively different from those in Texas, Roberts didn’t buy it. His unwillingness to go along with the argument that abortion regulations in each state should be treated differently is a clear signal to anti-abortion activists that they may have to shift their legal strategy. “It may be popping the balloon of the anti-abortion movement,” Ziegler said.
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