When six of the nine Supreme Court Justices together write 133 pages of opinions, divided into six different perspectives, in the course of deciding one case, it may be difficult to figure out just what the Court has done.
With today’s new abortion decision, however, that is easy: the 16 pages written by Chief Justice John G. Roberts, Jr., tell the whole story. It was a concurring opinion, not the main one, but it was the controlling one.
The other eight Justices wound up in an even split, four helping Roberts to make a majority at least for the result, and four in dissent.
What are the main points that emerge from Roberts’ part in the ruling in the case of June Medical Services v. Russo?
First, the Court’s key 1992 precedent, in Planned Parenthood v. Casey, which rescued most of Roe v. Wade from an earlier wave of attacks, remains a sound precedent and, in the real world of abortion law, actually functions as more important than Roe. Thus, the core of the right to abortion remains safe, at least for now. Roberts showed remarkable respect for the Casey approach, saying he felt bound by it (as he understands it, which is an important qualifier).
Second, the most drastic anti-abortion laws lately being adopted by state legislatures to try to overturn both Casey and Roe – such as bans on all abortions, bans at six weeks of pregnancy, or bans to apply when a fetal heartbeat is detected – almost surely would be doomed on reaching this Court, unless Roberts has a near-total change of mind.
Third, trial court judges in the federal court system, the ones who have done the most in recent years to counter the wave of drastic new restrictions on abortion rights, are given deep respect by the Chief Justice, at the expense of middle-level appeals courts that have been more hostile to abortion rights.
And, fourth, doctors and clinics performing abortions continue to have the right, as they have had for years, to file the lawsuits that have worked to protect women’s abortion rights, sparing the women themselves from that often difficult and sometimes threatening legal task. The Chief Justice accepted that ongoing role for the medical professionals as legal stand-ins with barely a word of analysis.
Those four outcomes are of deep significance in the still very controversial realm of abortion law. Part of the reason for that importance was the “might-have-beens” when the Court announced early last October that it would rule on two combined cases from Louisiana, involving the constitutionality of a state law that required doctors who performed abortions in the state to have the privilege to send patients to a hospital within 30 miles of the place where an abortion was performed.
That action, of course, did not say what the Court would rule in the end. However, it did raise the prospect that the newly established majority of five conservative Justices might use the case to reconsider whether to end the right to abortion, or at least to give states significant new authority to restrict that right.
Because the case involved a law that was almost identical to one enacted in Texas, which had been struck down by a Court with a different majority four years ago, the Court could have dealt with the Louisiana controversy with a brief, summary ruling, simply citing the earlier ruling as sufficient authority.
So, when full-scale review was promised, observers of the Court were entitled to speculate that this posed a new threat to abortion rights in general. The order granting review committed the Court to deciding whether to stand by the decision in the Texas case, or abandon it, and to deciding whether to end the right of doctors and clinics to stand in as challengers to abortion laws.
The potential threat also was enhanced by the simple fact that Justice Anthony M. Kennedy, who had famously been one of the three principal authors of the Casey decision, had retired in the meantime. (In 2016, Kennedy was in the 5-to-3 majority that had struck down the Texas case, a time when there was a vacancy on the Court resulting from the death of Justice Antonin Scalia.)
By the time the Louisiana case arose, Scalia and Kennedy had been replaced by two conservatives appointed by President Trump, Justices Neil M. Gorsuch and Brett M. Kavanaugh.
Those two gave the Court an apparently solid phalanx of conservative Justices, along with three members of the Court who actually had dissented in the Texas case: Chief Justice Roberts and Justices Samuel A. Alito, Jr., and Clarence Thomas.
It was not at all foolhardy to suggest that there was a majority to change the law of abortion, possibly in fundamental ways. Indeed, that suggestion came close to occurring today: Gorsuch, Kavanaugh, Alito and Thomas all would have ruled in favor of Louisiana; they lacked the vote of the Chief Justice.
Thus, the threat did not materialize, and now the prospect for a significant restraint on the right to abortion seems narrow, unless there is a change in the Court’s membership. While none of the current nine Justices is expected to depart from the Court at the end of the current term shortly, the presidential election in November may well have a major influence over the selection of Justices in the near future.
Chief Justice Roberts is responsible for the near-term, positive outlook for abortion rights. He embraced the Casey precedent, but he did so with a clarification that made the embrace more comfortable for him.
Just as a majority in 2012 in the Casey decision had made it more comfortable for moderate Justices like Kennedy and Sandra Day O’Connor to retain much of the core (but not all) of the Roe precedent, Roberts interpreted Casey so that it would still apply a strong, if slightly relaxed, standard that abortion restrictions would have to meet.
Courts, Roberts stressed, are required to judge abortion restrictions according to whether they imposed a “substantial obstacle” to women’s access to abortion. The Chief argued that the Court majority in the Texas case had applied a flawed interpretation of Casey that, he said, gave courts too much leeway to balance rights with restrictions, a kind of costs-versus-benefits analysis that he said was inappropriate for courts to do.
Even with that Roberts version, a right to abortion is still at the core of judicial review, and his approach almost certainly would not allow drastic restrictions of the kinds that have emerged in many states in the past few years.
The Chief Justice’s separate opinion also was responsible for enhancing the strength of trial court judges’ rulings that nullified new restrictions on abortion. Coming from Roberts as the head of the entire federal court system, his opinion on that point will have to be taken most seriously by lower appeals courts as they weigh the results coming to them from the trial courts beneath them.
And Roberts’ opinion also kept fully intact, with no qualifications at all, the role of doctors and clinics in the vanguard of legal challenges to abortion restraints. State officials in Louisiana had strenuously pressed the point in their appeal that the time had come to block abortion providers from that stand-in role. (Their argument gained the firm support of three of the dissenting Justices today, but they needed more votes that were not there — including Roberts’.)
The Chief Justice no doubt is fully conscious that there may well be a conservative backlash against his action today. And, of course, those who resent what he has done in this case almost certainly will continue to take future abortion cases to the Court, in hopes that, when asking him to end his embrace of the Casey precedent, they can find arguments that would lead him to switch. Such arguments were not apparent today.