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John Roberts Chooses Precedent Over Ideology in Latest Abortion Fight

The chief justice threads a judicial needle and hands the conservative legal movement another disappointing ruling.

Brendan Smialowski/Getty Images

Monday’s ruling in June Medical Services v. Russo is a victory for the status quo. The 5–4 decision struck down a Louisiana law that would have closed all but one of the state’s abortion clinics if it went into effect. Those clinics remain open; the prevailing order remains in effect. The high court’s abortion-rights precedents—especially a strikingly similar case from four years ago that concerned a similar law in Texas—pointed toward no other outcome, Justice Stephen Breyer wrote.

“This case is similar to, nearly identical with, Whole Woman’s Health [v. Hellerstedt],” he concluded in his plurality opinion. “And the law must consequently reach a similar conclusion. Act 620 is unconstitutional.” Justices Ruth Bader Ginsburg, Sonia Sotomayor, and Elena Kagan joined him. Four of the court’s conservative members disagreed and dissented accordingly.

Chief Justice John Roberts delivered the fifth vote to strike down the Louisiana law. Writing separately, he sided with the court’s liberal justices on the outcome but parted ways on the reasoning. “The legal doctrine of stare decisis requires us, absent special circumstances, to treat like cases alike,” he wrote in an opinion concurring only in the plurality’s judgment. “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.”

June Medical Services was the high court’s first major abortion-rights case since the Senate confirmed Justice Brett Kavanaugh two years ago. For social conservatives who hoped the court would move swiftly to unwind abortion-rights precedents after Anthony Kennedy’s retirement, Monday’s ruling was a deep disappointment. Its psychic impact will likely be even greater in the wake of rulings earlier this month on LGBT rights in the workplace and the Trump administration’s efforts to end Deferred Action for Childhood Arrivals. Those defeats have raised questions within conservative legal circles about the viability of their half-century project to remake the federal courts in their own image.

For Americans who favor abortion rights, the court’s ruling is only a mixed blessing. By striking down the Louisiana law, the court prevented a state from effectively shuttering all but one of its abortion providers. Roberts’s concurring opinion, however, narrowed how the court’s precedents could apply to other state-level restrictions on abortion access in the future. He also signaled that he could side with anti-abortion litigation in future cases before the court. Roe v. Wade may have survived this battle, but the long war against it continues.

The case itself involved a challenge to Act 620, a Louisiana law passed in 2014 that took aim at the state’s abortion clinics. It required doctors who perform abortions to obtain admitting privileges at a hospital within a 30-mile radius of the clinic. Laws like Act 620 are known as TRAP laws, meaning “targeted regulation of abortion providers,” because they use the state’s powers to pass health-and-safety laws to impose onerous requirements on abortion clinics. Since outright bans on abortion would be struck down by the courts, TRAP laws allow pro-life lawmakers to severely reduce legal access to the procedure through other means.

Under Planned Parenthood v. Casey, courts can strike down state laws that affect abortion providers and clinics if they impose an “undue burden” on a person’s right to access the procedure. Louisiana’s abortion providers sued the state to block Act 620 from going into effect, arguing that it would effectively make the procedure impossible to lawfully obtain in Louisiana. In 2017, a federal district court judge found that Act 620 met that threshold. If fully implemented, he noted, it would leave just one doctor in New Orleans who could lawfully perform abortions. Roughly 10,000 abortions are currently performed in Louisiana each year, the court found. The Fifth Circuit reversed that ruling and upheld the law on appeal, prompting the clinic to ask the Supreme Court to intervene.

If the legal battle over admitting privileges and TRAP laws sounds familiar, that’s because it is. The Supreme Court struck down a similar Texas law in Whole Woman’s Health v. Hellerstedt in 2016. In that case, Texas had imposed the same admitting-privileges requirement and mandated that clinics meet the standards of an ambulatory surgical center, imperiling a wide swath of abortion providers across the state. The justices ultimately rejected both restrictions. “Each places a substantial obstacle in the path of women seeking a previability abortion, each constitutes an undue burden on abortion access, and each violates the federal Constitution,” Justice Stephen Breyer wrote for the court.

What’s changed since Whole Woman’s Health? Anthony Kennedy, the justice who provided the fifth vote to strike down the Texas law, retired in 2018. Kennedy played a unique role in America’s abortion cases over the last 15 years. He was part of the three-justice troika in Casey that foiled a major push to overturn Roe and created the undue-burden framework. After Sandra Day O’Connor’s retirement in 2005, his vote was thought to be all that stood between the court’s conservative bloc and a ruling that would overturn or sharply limit Roe and Casey. His replacement, Justice Brett Kavanaugh, carefully avoided questions from the Senate Judiciary Committee about his views on abortion. Anti-abortion groups and abortion-rights groups assumed, however, that he would be more favorable toward restrictions than Kennedy.

One question in June Medical Services was whether the clinics themselves can challenge Act 620 at all. With some exceptions, third parties generally can’t sue in American courts to vindicate someone else’s rights. In the 1976 case Singleton v. Wulff, however, the justices allowed an exception because of the social stigma surrounding abortion and the close relationship between doctors and patients. Louisiana and the federal government urged the justices to reconsider or limit Singleton. The clinics, for their part, urged the court to not consider the state’s eleventh-hour standing challenge and noted that they would also be injured by Act 620 if it went into force.

On this much, Roberts and the court’s liberals agreed. They concluded that Louisiana had already forfeited its challenge to Singleton by agreeing that the clinics had legal standing earlier in the litigation. In their own dissents, Justices Clarence Thomas, Samuel Alito, Neil Gorsuch, and Brett Kavanaugh signaled that they thought either Singleton should be revisited or that the lower court should be given a chance to consider the question. “Because this right belongs to the woman making that choice, not to those who provide abortions, plaintiffs cannot establish a personal legal injury by asserting that this right has been violated,” Thomas wrote.

When it came to the merits, most of the case revolved around the scope of Whole Woman’s Health’s holding. The state of Louisiana and anti-abortion advocates argued that the 2016 ruling should be read narrowly because it drew heavily upon factual circumstances in Texas. The clinics and abortion-rights groups, by comparison, argued for a broader reading of its holding, noting that the court’s conclusions about the Texas law’s impact on abortion patients apply just as well to Act 620’s impact in Louisiana. While not legally binding in and of itself, Justice Ruth Bader Ginsburg’s concurring opinion in Whole Woman’s Health concluded that TRAP laws in general “cannot survive judicial inspection.”

According to Breyer and the court’s liberals, Whole Woman’s Health requires the lower courts to “consider the burdens a law imposes on abortion access together with the benefits those laws confer” when deciding whether the law imposes an “undue burden” under Casey. After reviewing the district court’s findings that Act 620 imposed significant barriers to access without providing any benefits for women’s health, Breyer found “ample evidentiary support” for its decision to strike down the law.

Roberts, for his part, also concluded that Whole Woman’s Health effectively decided the outcome of this case. At the same time, he took aim at that case’s balancing-test approach to abortion rights. “Nothing about Casey suggested that a weighing of costs and benefits of an abortion regulation was a job for the courts,” he wrote. “Casey instead focuses on the existence of a substantial obstacle, the sort of inquiry familiar to judges across a variety of contexts.” Because Roberts also found no error with the district court’s finding that Act 620 created a substantial obstacle, however, he concluded that the law must be struck down.

The result is a disjointed opinion from Roberts that simultaneously draws upon and undermines the 2016 ruling. “The Chief Justice stresses the importance of stare decisis and thinks that precedent, namely Whole Woman’s Health, dooms the Louisiana law,” Alito wrote in his dissenting opinion. “But at the same time, he votes to overrule Whole Woman’s Health insofar as it changed the Casey test.” Justice Neil Gorsuch also noted the irony in his own dissent: “Immediately after paying homage to stare decisis, [Roberts’s] concurrence refuses to follow the all-things-considered balancing test that decision employed when striking down Texas’s admitting privileges law.”

Roberts, perhaps anticipating the criticism he would receive from the right, signaled that he could be open to future challenges to abortion-rights precedents. “Both Louisiana and the providers agree that the undue-burden standard announced in Casey provides the appropriate framework to analyze Louisiana’s law,” he wrote. “Neither party has asked us to reassess the constitutional validity of that standard.” And while he concluded that the court was bound by precedent in this case, he also suggested that the justices might be less bound in other litigation if the claims are more properly presented.

Stare decisis is not an ‘inexorable command,’” Roberts wrote, quoting from an earlier ruling. “But for precedent to mean anything, the doctrine must give way only to a rationale that goes beyond whether the case was decided correctly. The Court accordingly considers additional factors before overruling a precedent, such as its administrability, its fit with subsequent factual and legal developments, and the reliance interests that the precedent has engendered.” He cited the court’s 2018 ruling in Janus v. State, County, and Municipal Employees, which overturned a major labor-rights precedent after the conservative justices spent years chipping away at it.

This is a recurring theme in some of Roberts’s most high-profile votes in recent years. In last year’s ruling to block a citizenship question on the Census, he concluded that the Trump Justice Department had effectively misled the courts on its rationale for adding the question. In this month’s ruling against the Department of Homeland Security’s efforts to unwind DACA, he faulted the administration for cutting corners to justify the change. Unfortunately for liberals, Roberts is more than willing to hand down conservative-friendly rulings on voting rights, partisan gerrymandering, Trump’s travel ban, and much more. Unfortunately for conservatives, Roberts isn’t willing to undermine himself—or his perception of the court’s legitimacy—along the way.