What John Roberts’s Surprise Abortion-Rights Ruling Means for the Future of Roe v. Wade

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In an unexpected 5–4 decision today, the Supreme Court struck down a 2014 Louisiana law that severely restricted access to abortions by mandating that doctors who perform the procedure have admitting privileges at nearby hospitals. If the law had gone into effect, it would have likely left the state with a single abortion clinic. The ruling was the third major case in a week in which Chief Justice John Roberts voted with the Court’s four liberal Justices and rejected a legal argument backed by President Trump and conservative Republicans. The majority’s decision in the case, June Medical Services v. Russo, was written by Justice Stephen Breyer and joined by his three liberal colleagues. Roberts wrote a concurring, “controlling” opinion, which agreed with the majority despite his dissent in a similar case, in 2016, involving a nearly identical law in Texas. “The result in this case is controlled by our decision four years ago invalidating a nearly identical Texas law,” Roberts wrote.

To talk about what this decision means for the future of abortion rights and the Supreme Court, I spoke by phone with Mary Ziegler, a law professor at Florida State University and the author of the new book “Abortion and the Law in America: Roe v. Wade to the Present.” During our conversation, which has been edited for length and clarity, we discussed why Roberts came to the conclusion he did, what the dissents of Justices Gorsuch and Kavanaugh tell us about the Court’s two Trump appointees, and what signals the Court sent about the future of Roe v. Wade.

What is the importance of today’s decision?

In the short term, it pauses the death of abortion rights. We have also seen the emergence of a new swing Justice on abortion, in John Roberts. But I think people are going to read this as a win for abortion rights to a much greater extent than it is. Roberts’s opinion was unambiguously skeptical of abortion rights. He made the point that the correct reading of the undue-burden standard, which is still the doctrine that applies to abortion, only resulted in one restriction being struck down in the original Planned Parenthood v. Casey decision, in 1992. And I think that pretty much captures what Roberts thinks is right in terms of how protected he thinks abortion rights should be. But Roberts, I think, unlike Brett Kavanaugh, wants to look as if he cares about precedent. And he couldn’t in good conscience do that while voting to uphold this law. So it means that respect for precedent will carry some kind of weight with this majority. But it also means that, if there is some way to convince Roberts that he can save face and still undo abortion rights, he will probably take it.

What does Roberts’s decision to defer to a precedent from four years ago suggest about how he might feel about deferring to a decision from nearly thirty years ago, Casey, or to Roe, which is nearly fifty years ago?

That’s the challenge for abortion opponents. Roberts is clearly an abortion-rights skeptic, as he made apparent today, but he also has an investment in precedent. And to your point, Roe and Casey are precedents, too. I think the most obvious strategy, if you are an abortion opponent, is to gut abortion rights without gutting abortion precedents. In other words, to say that women still have a right to an abortion but to functionally eliminate access to abortion. That is much more likely. There is nothing stopping someone like Roberts from doing that, and I think, if anything, the tools for doing that are already present in Casey and the decisions following it.

It’s a different question if you are looking for him to come out and say, “Roe and Casey are gone.” There is still a path to doing that, too, but only a very gradual one, which would make it seem as if this Court had really taken this seriously and grappled with it for a while and not just put Brett Kavanaugh on the Court and overturned Roe overnight—which is what conservatives seem to have been expecting.

In March, you wrote an Op-Ed for the Times, which read, in part, “So why is Louisiana—and, by proxy, abortion’s most sophisticated opponents—taking this approach? The answer is simple: Leading anti-abortion groups believe that arguing harm to women—not fetal rights—is the key to convincing both the court and the nation to let go of Roe v. Wade.” Does the decision they made today make you think you misjudged that?

Yes and no. There is a kind of popular-opinion protection for Roe. People think women want abortion rights, and the public supports abortion rights because abortion access makes women more equal. I think abortion opponents are correct to worry that, if that persists, the Supreme Court—and maybe any Supreme Court—will struggle to overturn Roe. I think it was a mistake to focus on that strategy, insofar as you were asking Roberts to uphold a law identical to one the Court struck down four years ago. And, for a Chief Justice who is deeply concerned about the Court’s reputation and also about optics, that was going to be a heavy lift from the beginning. So it may not have been a mistake to focus on women, but it was a mistake to focus on this law, which the Court had already weighed in on.

Are there other kinds of laws working their way through the courts that may end up being better targets for the anti-abortion movement?

Yeah, absolutely. Probably the most obvious are ones that are extensions of the Supreme Court’s decision in Gonzales v. Carhart, a 2007 decision that focused on later abortions. So, a twenty-week-abortion ban that bans abortions based on the theory that fetal pain is possible. They leveraged this idea in Gonzales that, if there is scientific uncertainty, the tie goes to the legislature. You can also leverage the fact that the Court has been more willing to uphold abortion restrictions later in pregnancy rather than earlier, and the idea that fetal viability—which is a little bit murky—does change as technology changes. So-called “dismemberment bans,” which outlaw dilation and evacuation (which is the most common second-trimester-and-after procedure), leveraged the idea, in Gonzales, that you can ban one procedure without it violating the Constitution. This focus on later abortions resonates better with voters, as well as with the Court, which isn’t an accident. And then, more recently, you have so-called “reasons bans.” You saw ones come out of Tennessee and Mississippi in the last couple of weeks, and they ban abortions for reasons of race, sex, or disability. The Court decided to not decide on one of those last year, but all of them are promising if you are an abortion opponent looking to unravel abortion.

Were there any aspects of the conservative dissent that you found particularly notable for thinking about the future of these matters?

I think Justice Gorsuch’s dissent was pretty notable. He was channelling a pretty common anti-abortion argument that is called the “abortion distortion” argument, which says that Roe is bad not just because it was wrongly decided but that it has also warped a lot of other aspects of American law. That was straight out of an anti-abortion brief. And if anyone had any doubts about whether Neil Gorsuch was going to be a swing vote on abortion, as he was in the Bostock case on L.G.B.T.Q. discrimination, this case puts those doubts to rest pretty clearly.


Isaac Chotiner

2020-06-29 18:12:01

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