Roberts splits with con­ser­va­tives on abor­tion is­sue

The Progress-Index - - OPINION -

Chief Jus­tice John Roberts re­cently voted with the Court’s lib­eral mem­bers pro­vid­ing a vic­tory to op­po­nents of a 2014 Louisiana law that re­quired doc­tors of­fer­ing abor­tion ser­vices to have hos­pi­tal priv­i­leges within 30 miles of their of­fice.

Those chal­leng­ing the im­ple­men­ta­tion of the Louisiana law ar­gued that it was iden­ti­cal to a Texas law the Supreme Court struck down in 2016. In that rul­ing, Jus­tice An­thony Kennedy joined with the lib­eral block of the Court find­ing that the Texas law im­posed an ob­sta­cle on women seek­ing ac­cess to abor­tion ser­vices.

In 2016, Roberts voted with the con­ser­va­tives in sup­port of the Texas law. Why did Roberts change his po­si­tion on this hot-but­ton political is­sue? Some would sug­gest that he didn’t change his mind, the High Court set a prece­dent in 2016 and Roberts now sup­ports the Court’s prece­dent.

How­ever, there may be more to Roberts’ change of heart than just up­hold­ing prece­dent.

Last fall, af­ter Cal­i­for­nia Fed­eral Dis­trict Court Judge Jon Ti­gar put a tem­po­rary hold on the Trump ad­min­is­tra­tion’s plan to no longer con­sider asy­lum ap­pli­ca­tions from im­mi­grants who il­le­gally cross the bor­der, Pres­i­dent Don­ald Trump re­ferred to Ti­gar as an “Obama judge.”

Chief Jus­tice Roberts shot back, “We do not have Obama judges or Trump judges, Bush judges or Clin­ton judges. What we have is an ex­tra­or­di­nary group of ded­i­cated judges do­ing their level best to do equal right to those ap­pear­ing be­fore them.”

So what is Roberts try­ing to ac­com­plish with his re­buke of the pres­i­dent and his un­likely vote on abor­tion?

Ac­cord­ing to the Al­liance for Jus­tice, it is well known that Roberts cares deeply about his own le­gacy and about the rep­u­ta­tion of the Court as an in­sti­tu­tion, so he wants to avoid the ap­pear­ance of par­ti­san­ship. The Court now has five dyed-in-the-wool con­ser­va­tives - two ap­pointed by Pres­i­dent Trump.

In the last 20 years, con­ser­va­tives on the Supreme Court have been re­spon­si­ble for a num­ber of de­ci­sions that, at a min­i­mum, have the ap­pear­ance of par­ti­san­ship start­ing with Bush v. Gore. In 2010, the High Court turned politics on its head with the Cit­i­zens United de­ci­sion and in 2013 the Court evis­cer­ated the Vot­ing Rights Act.

It is no se­cret that Roberts is con­cerned with the ap­pear­ance of a par­ti­san Supreme Court. In an in­ter­view with The At­lantic Roberts said, “Politics are closely di­vided. The same with the Congress. There ought to be some sense of some sta­bil­ity, if the gov­ern­ment is not go­ing to po­lar­ize com­pletely. It’s a high pri­or­ity to keep any kind of par­ti­san di­vide out of the ju­di­ciary as well.”

If the Supreme Court be­comes mired in hy­per par­ti­san­ship then the court will be no better than the politi­cos who in­habit the White House and D’s and R’s that oc­cupy the cap­i­tal.

What does the Louisiana de­ci­sion mean for a woman’s right to choose? Dur­ing the sala­cious con­fir­ma­tion hear­ings for the new­est mem­ber of the Court, Jus­tice Brett Ka­vanaugh, the alarm sounded that a fifth con­ser­va­tive jus­tice could mean the end of Roe v. Wade.

Women’s rights groups were as­sured by GOP Se­na­tor Susan Collin when she said she was sat­is­fied that Jus­tice Ka­vanaugh would pro­tect re­pro­duc­tive rights. Well, that hasn’t gone as planned. Not only did Ka­vanaugh sup­port the im­me­di­ate im­ple­men­ta­tion of the Louisiana law, he wrote a dis­sent­ing opin­ion.

Chief Jus­tice Roberts in­ter­vened and tilted the scales away from im­ple­men­ta­tion. But, what will to­mor­row bring? The Louisiana law has never gone into ef­fect. It was blocked by a U.S. Dis­trict Court Judge. The Fifth Cir­cuit over­turned the Dis­trict Court.

How­ever, the Supreme Court did not over­turn the law. The Supreme Court only granted a de­lay to re­view the mat­ter.

The Court may still refuse to hear the case and leave the Cir­cuit Court de­ci­sion in place. Ac­cord­ing to NPR, that would be a tacit ac­knowl­edg­ment that a ma­jor­ity of the jus­tices no longer sup­port the 2016 de­ci­sion and may be an easy way out for Roberts.

Matthew T. Mangino is of coun­sel with Lux­en­berg, Gar­bett, Kelly & Ge­orge P.C. His book The Ex­e­cu­tioner’s Toll, 2010 was re­leased by McFar­land Pub­lish­ing. You can reach him at www. and fol­low him on Twitter @ MatthewTMangino.

Matthew T. Mangino

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