Liberals shouldn’t rely on John Roberts even after Monday’s abortion ruling

Chief Justice John Roberts shocked Supreme Court watchers Monday by unexpectedly providing a fifth vote to strike down a Louisiana law that would have forced most of the state’s few remaining abortion clinics to close. Though his ruling came after he joined with the court’s four liberals against the Trump administration’s effort to repeal the Obama-era Deferred Action for Childhood Arrivals program, and after he and Justice Neil Gorsuch also joined with the liberals to hold that Title VII of the Civil Rights Act forbids discriminating against LGBTQ people, the decision was surprising because Roberts had, just four years ago, sided with the court’s conservatives in favor of the same law in Texas.

That said, Roberts didn’t join with the decision but concurred in a separate opinion, and his concurrence clearly signals that he believes abortion regulations should be evaluated by a standard that is very deferential to state anti-abortion forces. It also signals that he is open to finding other state approaches to restricting abortion access constitutional — though he seems more reluctant than expected to overrule Roe v. Wade altogether. Supporters of reproductive rights should be relieved today, but should also know that their struggle is far from over.

Roberts’ concurrence with the liberal majority is interesting because Louisiana law was explicitly enacted after that state’s Legislature saw the Texas law — which required that doctors have admitting privileges at a hospital within 30 miles of the clinic — succeed in shutting down a large number of abortion clinics in the Lone Star State. Louisiana’s law then, replicated Texas’ and, as happened in Texas before that case reached the Supreme Court, most of Louisiana’s abortion providers’ good faith efforts to obtain hospital admitting privileges were denied. That, of course, isn’t surprising, since the obvious intent of both statutes was to shut down clinics, not to ensure doctors had personal access to an area hospital.

After Louisiana passed its replica law, though, the Supreme Court struck down the Texas law on which it was based in the 2016 Whole Woman’s Health decision, because of the swing vote of Justice Anthony Kennedy. Opponents of reproductive rights in Louisiana (and elsewhere), however, took heart when Kennedy resigned in 2018 and was replaced by the more reactionary Brett Kavanaugh — which meant that the new “swing” vote in the court and on the case would be Roberts, who had sided with the state of Texas in the Whole Woman’s Health case.

But Roberts disappointed those conservatives Monday, filing a concurrence that did not join Justice Stephen Breyer’s plurality opinion but merely agreed that the Louisiana law was unconstitutional. Roberts somehow reiterated his view that Whole Woman’s Health was wrongly decided, stating that the court erred by considering both the burdens the law placed on a woman’s ability to obtain an abortion (considerable) and the benefits the law provided for a woman’s health (none.) Roberts suggested he would instead prefer to consider only the former, which would give states more leeway to pass restrictions using bad faith “health” pretexts. But, he concluded, since the two laws were identical, he was obligated to apply the directly relevant precedent to the case at hand, as precedent should be rejected only under “special circumstances.”

This is, notably, not always precisely how precedent works at the Supreme Court.

Breyer’s opinion, of course, applied the precedent of Whole Woman’s Health without the reluctance, stating that the Louisiana law was unconstitutional. If allowed to remain in force, it would have left at most two (and possibly only one) remaining clinic for a state with more than 4.5 million residents. As Breyer points out, that lack of options would have been compounded by an array of other arbitrary restrictions the state imposes on the procedure, including that a woman obtain an ultrasound and wait 24 hours after a mandatory counseling session before going through with an abortion, which already makes it difficult for women with inflexible work and/or caregiving schedules and those lacking ample financial resources to obtain abortions, even before the added burden of traveling the long distances that would’ve been the end result of the law.

These burdens in Louisiana, as with those in Texas, were justified by claims that they were meant to protect women’s health — but those claims are easily exposed as a total sham. Fewer than one woman a year in the state was transferred to a hospital following an abortion because abortion is a very safe procedure that does not justify having unique and onerous burdens placed on it. (And, in the rare cases that a woman needs to be admitted to the hospital, she can be irrespective of whether her doctor had admitting privileges.) The difficulty abortion doctors had in obtaining such privileges, however, underlines that the intent — as well as the effect — of the law was to shut down abortion clinics and hence make abortion less safe, not to protect the health of Louisiana’s women.

All four of the dissenting men produced their own opinions, recycling arguments the court has heard before, including that doctors should not have the standing to challenge the law (a weak argument given that doctors are the ostensible target of the law) or that the law should be allowed to go into effect because, although the state had so far denied most abortion doctors in the state admitting privileges, it might not do so in the future. That they were farcical on their face might have something to do with the fact that none of their authors could convince Roberts to side with them on the law instead of with the liberals with whom he clearly disagrees on the politics.

In retrospect, going to the Supreme Court with a law identical to one that was recently struck down does seem like a major tactical blunder on the part of the abortion opponent litigators (albeit an understandable one, given Roberts’ vote in Whole Woman’s Health). But celebrations by supporters of abortion rights should be tentative, given Roberts’ general sympathy to state regulations of abortion — even though this is a major and unexpected victory for the reproductive freedom of American women.