Roberts joins liberals in 5-4 abortion ruling
What happened
The Supreme Court handed abortionrights advocates a surprise victory this week, as Chief Justice John Roberts joined the court’s liberal wing to strike down a Louisiana law that would have limited abortion access in the state. It was a blow to abortion opponents who’d hoped the appointment of conservative justices Neil Gorsuch and Brett Kavanaugh would pave the way for a narrowing, and ultimately a repeal, of abortion rights. “Today’s ruling is a bitter disappointment,” said Marjorie Dannenfelser of the Susan B. Anthony List, an anti-abortion group. The case, June Medical Services v. Russo, centered on a Louisiana law requiring that doctors performing abortions have admitting privileges at a local hospital. Lawyers defending the law argued it was needed to protect women’s safety, while opponents said it was a backdoor attempt to limit abortion access, noting it could leave the state with only one provider. Writing for his three liberal colleagues, Justice Stephen Breyer said that by posing a “substantial obstacle” for women seeking abortions, the law violated their constitutional rights.
Roberts offered much narrower reasoning for his vote—which marked the third time in a week he sided with the liberals, following votes to extend workplace protections for LGBTQ employees and to protect immigrant “Dreamers” from deportation. In a solo opinion, he cited a nearly identical Texas law the court struck down in 2016, and said the court was bound to follow precedent— even though he’d dissented in that case and still believes it “was wrongly decided.”
Roberts did give conservatives a win Tuesday in a 5-4 ruling that states offering aid to private schools must extend it to religious schools. Writing for the majority, Roberts said excluding religious schools from aid programs violates constitutional religious protections. The ruling could open the door for more public funding of religious schools, long a goal of conservatives, including Education Secretary Betsy DeVos. It was “a historic victory,” said DeVos. The dissenting justices said the ruling compromises the separation of church and state.
What the editorials said
Don’t be fooled into thinking Roberts’ vote signals that he has come to respect “the bodily autonomy of American women,” said The New York Times.
He seems to have decided this wasn’t the right time for a ruling “crippling reproductive rights”—but in his narrow, grudging opinion he “left the door open to doing so in the future.” Conservatives are still intent on “obliterating abortion access in America,” and the court remains “as hostile to reproductive freedom as it ever was.”
Roberts’ legal “contortions” are a “disgrace” to the nation’s highest court, said National Review. “He has been perfectly willing to overrule precedents in the past,” such as in a 2007 case that “upheld a ban on partial-birth abortion” of a type the court had struck down seven years earlier. His disingenuous ruling is further evidence he’s “the most politically calculating of all the justices”— and an affront to those who believe all human beings have a right to life, “whatever their age or size or location or condition of dependence.”
What the columnists said
It’s Roberts’ court now, said Adam Liptak in The New York Times. His ideologically split decisions—like this week’s votes on abortion and aid to religious schools—demonstrate that he’s “an incrementalist and an institutionalist” who refuses to be bound by conservative expectations. As both chief justice and the court’s crucial swing vote, this canny strategist “wields a level of influence that has sent experts hunting for historical comparisons.”
The abortion ruling is a “blow to the left” cloaked in “what appears to be a small victory,” said Dahlia Lithwick in Slate.com. Roberts’ real objection seems to have been the state of Louisiana’s “demonstrably bad” case. Women’s reproductive rights are of little concern to him; “he just doesn’t like it when lazy litigants offer up sloppy pretexts.” One can “easily reverse-engineer” his opinion to say, “Come back to me with the right road map and I’m all yours.”
Roberts “has put another shiv in the ribs of judicial conservatives,” said Quin Hillyer in WashingtonExaminer .com. Precedent is important, but not “when the prior decisions are clearly wrong.” Roe invented a right to abortion clearly not in the Constitution. Roberts isn’t “calling balls and strikes,” as he once promised; he’s crafting rulings to stay in the good graces of “the coastal elites.”
Roberts “has drawn his line in the sand,” said Noah Feldman in Bloomberg.com. By handing conservatives “a massive setback,” he’s made clear he “doesn’t want the Roberts Court to be remembered as a reactionary body that reversed nearly 50 years of settled law on abortion rights.” But he’s also indicated that “he’s open to upholding laws that chip away at the existing abortion-rights framework.” So while cultural conservatives gnash their teeth, abortion rights in America “remain under threat.”