Roberts Fights Off Conservatives To Preserve Abortion Rights…For Now

The Supreme Court on Monday struck down an abortion clinic restriction law out of Louisiana. It was a 5–4 decision, with Chief Justice John Roberts joining the liberals in a concurring decision — and saying precedent required him to do so.

The Court had clear precedent to work with: just four years ago, it overturned a law out of Texas in Whole Woman’s Health v. Hellerstedt. Both laws centered on admitting privileges for doctors at nearby hospitals. Justice Stephen Breyer, writing for the majority, called the Louisiana law “almost word-for-word identical” to the Texas law the Court struck down in 2016.

Proponents of the laws said that they made the procedures safer; opponents said that the procedure is already safe, and that it’s just an additional and unnecessary burden meant to run abortion clinics out of town.

In an ironic turn, Roberts concurred with the Louisiana decision due to the precedent established by the Texas decision — which he dissented from.

“I joined the dissent in Whole Woman’s Health and continue to believe that the case was wrongly decided,” Roberts 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 requires us, absent special circumstances, to treat like cases alike,” he added. “The Louisiana law imposes a burden on access to abortion just as severe as that imposed by the Texas law, for the same reasons. Therefore Louisiana’s law cannot stand under our precedents.”

Roberts made clear, though, that he was not tying his decision to any political preference. Rather, he hung it all on stare decisis, the notion of precedent, saying that he also would be loathe to strike down an abortion regulation absent proof that it hinders a woman’s ability to get the procedure done.

“Under principles of stare decisis, I agree with the plurality that the determination in Whole Woman’s Health that Texas’s law imposed a substantial obstacle requires the same determination about Louisiana’s law,” he wrote. “Under those same principles, I would adhere to the holding of Casey, requiring a substantial obstacle before striking down an abortion regulation.”

Roberts was a question mark as the case unfurled, though some speculated that an eye on his legacy and discomfort with overtly political moves would prompt him to join the liberals.

“I think the Chief Justice would be very concerned about stories that said — and every story would say it — that the Court reversed four-year-old precedent because the Chief Justice replaced Kennedy” as the swing justice, professor emeritus Arthur Hellman at the University of Pittsburgh Law School told TPM.

Hellman also speculated that Roberts is emphasizing his reliance on precedents so much to “lay down some markers” in case a future, liberal-majority court has a hankering to overturn old rulings.

Columbia University Law School professor Carol Sanger added that Roberts’ decision was in line with his ideology.

“He’s not a closet liberal, he’s an out conservative who believes in stare decisis, a very traditional doctrine,” she told TPM. “The fact that the other four believe in it too doesn’t pull him over to the liberal side.”

Court’s Conservatives Sound Off In Dissents

Justice Clarence Thomas took issue with Roberts’ decision in his dissent, arguing that it’s the Court’s job to overturn precedents when they are “poorly reasoned” and “unworkable.” 

“Even under the Chief Justice’s approach to stare decisis, continued adherence to these precedents cannot be justified,” he wrote, adding his belief of the Constitutional illegitimacy of the landmark, foundational abortion access case Roe v. Wade. 

“Moreover, the fact that no five Justices can agree on the proper interpretation of our precedents today evinces that our abortion jurisprudence remains in a state of utter entropy,” he added.

Justice Samuel Alito argued that Roberts was wrong in his application of stare decisis because the Louisiana and Texas laws are actually different. 

“There is no reason to think that a law requiring admitting privileges will necessarily have the same effect in every state,” he said, though the Court’s plurality this time found that the Louisiana law did, like the Texas one, represent an obstacle to women seeking abortions.

He also argued that overruling precedent should be considered when a case is an “outlier.”

Justice Neil Gorsuch, like his conservative peers, snuck in a shot at Roberts in his dissent too.

“A deeper respect for stare decisis and existing precedents, the concurrence assures us, supplies the key to a safe way out,” he wrote. “Unfortunately, however, the reality proves more complicated,” he added, delving into specifics of the Whole Woman’s Health case.

Liberals Win The Standing Fight, For Now

In the majority decision, the Court found that that “the law offers no significant health benefit” and that it will “make it impossible for abortion providers to obtain conforming privileges for reasons that have nothing to do with the State’s asserted interests in promoting women’s health and safety.” 

“This inability,” the Court adds, “places a substantial obstacle in the path of women seeking an abortion.”

In another important victory for those supporting abortion rights, the Court confirmed Monday that health care providers can sue to challenge state laws in court on behalf of their patients. The state in this case, at one point, argued that doctors do not have the standing necessary to bring the cases, saying that their interests do not align with the patients’. 

Breyer said that the state had made the “unmistakable concession” of waiving the argument in exchange for a “quick decision” from the District Court. 

Anyway, he added, “We have long permitted abortion providers to invoke the rights of their actual or potential patients in challenges to abortion-related regulations.”

The standing question is the heart of Thomas’ dissent, who accuses the majority of “all but ignoring” the state’s argument.

Alito also focused on standing in his stinging dissent, saying that “The idea that a regulated party can invoke the right of a third party for the purpose of attacking legislation enacted to protect the third party is stunning.”

As Julie Rikelman, lawyer for the Louisiana abortion clinic said during oral arguments, the vast majority of abortion lawsuits are brought by health-care providers on behalf of their patients.

The decision means that the three abortion clinics Louisiana has can continue to operate. All others in the state were crushed under the weight of stiff restrictions and requirements in the 89 state laws Louisiana has passed to regulate abortion clinics since Roe v. Wade in 1973.

It’s also a comfort to liberals who feared that the Court had irreparably been yanked ideologically to the right with the additions of Justices Brett Kavanaugh and Neil Gorsuch. Indeed, one of the main selling points of President Donald Trump’s campaign was new justices to overturn Roe. With this decision, it appears that Roberts at least is not comfortable with such a fast move to disregard precedent.

Later Monday afternoon, the White House called the decision “unfortunate” and said that it “devalued” the lives of mothers and unborn babies.

“Instead of valuing fundamental democratic principles, unelected Justices have intruded on the sovereign prerogatives of State governments by imposing their own policy preference in favor of abortion to override legitimate abortion safety regulations,” read the statement.

For liberals, Sanger said, the decision is a sigh of relief, since no more abortion cases will come up to the highest court before the presidential election.

“Everything hinges on November,” she told TPM. “It’s quite serious in terms of not just the Supreme Court, but also the lower courts.”

Read the Supreme Court decision here: