When Donald Trump ran for president, he promised to appoint justices to the United States Supreme Court who would vote to overturn Roe v. Wade. His running mate, Mike Pence, vowed the same. Today, it seems that the president may have followed through with his promise … but was stopped in his tracks by Chief Justice John Roberts, who apparently does not want to let that happen.
In a 5-4 decision, the Supreme Court struck down a Louisiana law that would have shut down all but one clinic in the state. That law — requiring abortion doctors to have admitting privileges at a local hospital — was almost identical to a Texas law that the Supreme Court found unconstitutional in 2016. In the case of Whole Woman’s Health v. Hellerstedt, the Supreme Court found that the Texas law provided no benefits to patients but instead burdened access to abortion so significantly because most clinics in the state would shut down.
Thus, today’s decision should have been an open and shut case. Texas’ law was unconstitutional four years ago; Louisiana’s law was virtually identical to that law — it should be unconstitutional as well. But, the addition of the two new justices to the court, and in particular conservative Justice Kavanaugh replacing abortion-rights supporter Justice Anthony Kennedy, made this case a very big deal. To everyone following this issue, this case was going to be the barometer for how the newly conservative Supreme Court would treat abortion.
This morning gave us the complicated answer. A majority of the justices voted to strike down the law based on the 2016 case, however, those five justices did not agree on the rationale. Justice Breyer, who wrote the 2016 decision, authored an opinion for himself and the three other liberals on the court. His opinion was a straightforward application of the 2016 case. He said that this law is no different, and because it also provides no benefits while seriously burdening abortion access, it is unconstitutional, like the Texas law. The Louisiana abortion clinics can remain open, and people seeking abortions in the state will not have to face an even more drastic access landscape.
This is where Chief Justice Roberts comes in. The chief dissented in the 2016 case and would have allowed the Texas laws. But this time around, he voted with Justice Breyer to strike down the Louisiana law. He couldn’t bring himself to join Justice Breyer’s opinion, writing his own opinion instead. And until the court changes, because the chief justice is the swing vote on this issue, this opinion will be the key to future abortion cases.
So what does the chief’s opinion say? He made it clear that he still disagrees with the 2016 case, but he said that courts should, barring exceptional circumstances, follow the rules from previous cases. So, even though he disagrees with the 2016 decision, he will follow it. And because all the evidence from the case indicated that the Louisiana law was no different than the Texas law, the chief followed the 2016 precedent and struck the new law down.
In doing so, Chief Justice Roberts made two things relatively clear for future cases, and this is what is going to be important going forward. First, he does not appear to have any appetite for overruling Roe v. Wade and the basic principle that states cannot make abortion illegal. To be clear, he doesn’t say this explicitly, but he applies the constitutional principle from Roe and its follow-up case of Planned Parenthood v. Casey without any hesitation. In fact, the gist of his separate opinion is that he believes his reading of Casey is the better way to remain faithful to that case.
Sure, he could eventually vote to overturn Roe and Casey (he’s a justice of the Supreme Court after all, and can do whatever he wants), but his opinion today gave no indication that was the case. His unwillingness to overturn recent abortion precedent with which he clearly disagrees suggests he just doesn’t want to upset the apple cart too much here. Based on what he did and said today, overturning Roe and Casey doesn’t seem in the cards from the chief, and without him, that means there aren’t five votes to do so. Roe and Casey are safe for now.
But second, Chief Justice Roberts does seem more than willing to allow all sorts of abortion restrictions short of illegality. His opinion today says that in order to be unconstitutional, an abortion restriction must be a substantial obstacle. The test he wants courts to apply to determine whether there is such an obstacle is more forgiving than the balancing test Justice Breyer applied in 2016. Getting technical, Justice Breyer says all laws should be balanced — benefits against the burdens. Chief Justice Roberts disagrees, saying that the benefit is irrelevant and all that matters is whether there is a substantial obstacle. That is a high hurdle. And with the other four conservative justices, including Trump’s new justices, voting to allow Louisiana’s restrictions (and more), the chief would probably provide the fifth vote in the future to uphold other restrictions.
In other words, the bottom line here is that the status quo in the world of abortion should remain as long as this court doesn’t change. Even with the two new Trump justices on the court, it appears that abortion will remain legal, and Roe is safe. However, states that want to make the obstacle course that abortion patients have to navigate in order to get their procedure more difficult are going to continue to have leeway to do so … except when they try to do the exact same thing as what Texas did in 2016.