Principle over politics? Why Chief Justice Roberts upheld abortion rights.

In its sprint to release the last of its opinions this term, the U.S. Supreme Court provided another surprise ruling Monday in striking down a Louisiana abortion regulation.

The regulation in question, Act 620, resembled “almost word-for-word” a Texas law the high court had declared unconstitutional only four years ago. For the court’s four liberal justices, that precedent – along with factual details about the regulation determined by a federal district court in the Pelican state – was enough to rule that Act 620 is also unconstitutional.

“This case is similar to, nearly identical with Whole Woman’s Health,” the 2016 Texas case, wrote Justice Stephen Breyer for that four-justice plurality. “The law must consequently reach a similar conclusion.”

That opinion, however, is not the controlling decision in the case. Instead it is the concurrence written by Chief Justice John Roberts, who dissented from the 2016 ruling. He still believes that case was wrongly decided, he wrote in the concurrence, but the doctrine of stare decisis – which holds that courts must honor precedent – compelled him to agree with Justice Breyer’s opinion.

“The Louisiana law imposes a burden on access to abortion just as severe as that imposed by the Texas law, for the same reasons,” he wrote. “Therefore Louisiana’s law cannot stand under our precedents.”

In the short term, amid a fraught and polarizing election year, the ruling represents another example of legal principle outweighing legal politics – particularly for Chief Justice Roberts, the ideological center of a court with a narrow but deeply conservative majority.

In the long term, however, experts say the ruling lays the groundwork for the court to swing to the right on abortion in the future.

Yesterday’s ruling mirrors the court’s DACA decision earlier this month, which preserved an Obama-era program protecting unauthorized immigrants brought to the United States as children from deportation, says Mary Ziegler, a Supreme Court and abortion law expert at the Florida State University College of Law. Both cases were 5-4 decisions with Chief Justice Roberts, a philosophically conservative jurist, joining his four liberal colleagues in a narrow ruling.

“The much vaunted conservative majority can evaporate depending on how cases are presented,” says Professor Ziegler. Those two rulings in particular “suggest that in some ways [Chief Justice] Roberts doesn’t like sloppiness, essentially.”

“This term more than any other has signaled that [Chief Justice] Roberts will determine the court’s future, and that that future will be hard to predict,” she adds.

“We won this battle”

The decision was the best birthday present Amy Hagstrom Miller could have asked for. Ms. Miller, the president and CEO of Whole Woman’s Health – the plaintiff in the 2016 case, Whole Woman’s Health v. Hellerstedt – now says she wants a T-shirt with “stare decisis” written on it.

“We’re standing on each others’ shoulders with each of these cases,” she adds.

Back in 1992, in Planned Parenthood v. Casey, the Supreme Court upheld the constitutionality of the right to an abortion, but gave states the right to regulate abortion access so long as it didn’t place an “undue burden” on women seeking the procedure.

“Casey opened the door for state restrictions, but Whole Woman's Health closed that door,” Ms. Miller. The Louisiana case “was the first real test and we passed with flying colors.” 

After the ruling came out she texted Kathaleen Pittman, the clinic director of the Hope Medical Group for Women, which brought the challenge to Act 620. But while Ms. Pittman says her face “hurt from grinning so much,” she’s under no illusion that court battles over abortion access are over.

“We didn’t really advance anything. We maintained the status quo,” she says. “We won this battle. We’ve not won the war.”

While Chief Justice Roberts is usually a reliably conservative jurist – and skeptical of abortion rights in particular – he also has a demonstrated interest in preserving the court’s institutional integrity and the perception that it’s ruled by law, not politics or policy.

Thus, faced with a case virtually identical to Whole Woman’s Health, with the only major difference the addition of two conservatives justices, Neil Gorsuch and Brett Kavanaugh, in place of moderate conservative Justice Anthony Kennedy and the late Antonin Scalia, court watchers weren’t surprised to see the chief justice follow his institutionalist instincts.

That said, his conservative instincts are visible from the second paragraph of his concurrence, where he clarified that he still believes Whole Woman’s Health was wrongly decided. Further in, he writes that the 2016 ruling had misinterpreted the decision in Casey by holding that the undue burden standard requires courts to balance an abortion regulations’ benefits against its burdens – burdens he described, quoting Casey, as a woman’s “liberty interest in defining her ‘own concept of existence, of meaning, of the universe, and of the mystery of human life.’ ” 

“There is no plausible sense in which anyone, let alone this Court, could objectively assign weight to such imponderable values and no meaningful way to compare them if there were,” wrote Chief Justice Roberts. “Pretending that we could pull that off would require us to act as legislators, not judges.”

Instead of trying to balance benefits and burdens, “the only question for a court,” he added, is whether an abortion regulation places “a substantial obstacle in the path of a woman seeking an abortion of a nonviable fetus.”

In his dissent Justice Gorsuch noted, “today’s concurrence recognizes” that the court has long rejected “the sort of all-things-considered balancing of benefits and burdens.”“It’s little more than the judicial version of a hunter’s stew: Throw in anything that looks interesting, stir, and season to taste,” he added.

Opening the way for more restrictions

The practical effects of his concurrence is to technically uphold Whole Woman’s Health while simultaneously gutting it. The balancing test in that ruling heightened the scrutiny for abortion regulations beyond what Casey called for, but Chief Justice Roberts’ concurrence yesterday says courts now “don’t actually have to do that,” says Melissa Murray, a professor at New York University School of Law.

“States will be emboldened to pass new [restrictive] laws,” she adds. “There are definitely five votes on the court that are not receptive to abortion rights, and the Chief Justice is one of them.”

Supporters of strict regulations on abortion access – including Katrina Jackson, the Louisiana state senator who authored Act 620 – reacted to the ruling with disappointment and promises to continue their work.

“Considering the landscape of the court, there was a lot of hope,” says Alexandra Seghers, director of education for Louisiana Right To Life. “We view the unborn child and the woman as equally valuable. And we continue to fight for the day that everyone recognizes this as well.”

The legal battle over abortion is now likely to follow two tracks: One track seeking to  slowly and incrementally restrict access to abortion, and the other seeking a rapid overturn of the constitutional right to abortion itself.

Republican-led states have been pursuing both tracks since the Whole Woman’s Health decision four years ago. Last year lower courts blocked a half-dozen state “heartbeat” laws, which make abortion illegal as early as six weeks in a pregnancy. Earlier this month the Tennessee state legislature passed a similar law, though it has not gone into effect due to legal challenges. An Alabama law enacted last year, banning all abortions except those necessary to save a mother’s life, has been similarly delayed. 

President Donald Trump has also filled lower courts with conservative judges, which is likely to embolden more conservatives to take the second track.

There’s “a clear rebellion against the ‘death by a thousand cuts’ approach,” says Professor Ziegler. “We’ll continue to see a push for that even though it may backfire at the Supreme Court.” 

While Chief Justice Roberts adhered to stare decisis in yesterday’s ruling, there is ample evidence of him also doing the opposite. Justice Clarence Thomas, in his dissent, referenced three opinions (including one written by the chief justice) from the past two terms. Stare decisis “is better understood as the judicial license to adhere or not adhere depending on what policy result is desired,” wrote Andrew McCarthy, criticizing yesterday’s ruling, in the National Review.

Yet yesterday’s opinion, experts say, adds to a throughline in Chief Justice Roberts’ jurisprudence – visible in his DACA opinion earlier this month, and his opinion last term blocking a citizenship question from the 2020 Census – indicating that while he may be skeptical of abortion rights, efforts to restrict or eliminate those rights will have to meet base legal standards.

“You have to come at him with right case, argued in right way, and argue it seriously,” says Professor Ziegler. “If you don’t do that, he won’t take it seriously.”