Legal analyst reveals the hidden downside in the Supreme Court's splintered ruling protecting abortion rights
In a 5-4 ruling announced on Monday, the U.S. Supreme Court struck down a Louisiana law that required abortion providers to have admitting privileges at a nearby hospital in a win for reproductive rights. And surprisingly, Chief Justice John Roberts voted with the liberal justices to preserve the court's precedents and protect abortion access.
Social conservatives are furious with Roberts. But legal writer Mark Joseph Stern argues in Slate that Roberts’ reasoning in the case, June Medical Services v. Russo, isn’t quite as favorable to abortion rights as it may initially appear.
“The outcome is, indisputably, a triumph for Louisiana’s three remaining clinics, which can now remain open thanks to the Supreme Court,” Stern explains. “But Roberts’ opinion itself is far from an unalloyed endorsement of a constitutional right to choose. In fact, the chief justice cut back protections for women seeking abortions and laid the groundwork for a future erosion, if not outright reversal, of Roe v. Wade.”
The Supreme Court’s ruling in June Medical Services, Stern notes, was similar to its 2016 ruling in the case Whole Woman’s Health v. Hellerstedt, which struck down a similar law in Texas.
“In Whole Woman’s Health, the Court ruled that Texas’ admitting privileges law imposed an ‘undue burden’ on the constitutional right to abortion,” Stern recalls. “Since Louisiana’s law is indistinguishable from Texas’, it should have been plainly unconstitutional under Whole Woman’s Health. But the 5th U.S. Circuit Court of Appeals effectively defied precedent by upholding the Louisiana regulation.”
Some major changes on the U.S. Supreme Court have occurred since 2016. Former Justice Anthony Kennedy, a right-wing libertarian, is no longer on the Court — which now includes two nominees of President Donald Trump: Justice Brett Kavanaugh and Justice Neil Gorsuch.
“The big question in June Medical [was] whether Roberts, who dissented in Whole Woman’s Health, would nonetheless invalidate Louisiana’s law on the grounds of stare decisis, or respect for precedent,” Stern notes. “And that’s exactly what Roberts did — with a catch. The Court actually splintered 4–1–4: Justice Stephen Breyer wrote for the four liberals, the chief justice wrote an opinion concurring in the judgment, and the four other conservatives dissented…. Although Roberts supported Breyer’s bottom line holding, he declined to join Breyer’s opinion.”
Stern goes on to explain: “Because the chief justice’s opinion is narrower than Breyer’s, it is ‘controlling’ — that is, it’s the law of the land. Advocates on both sides of the abortion debate will thus be scrutinizing Roberts’ concurrence for years to come. And it gives both sides reason for encouragement.”
According to Stern, Robert’s decision in June Medical doesn’t necessarily mean that Roe v. Wade won’t be overturned at some point.
“In short, Roberts — alone among the conservatives—agreed with the liberals that Louisiana cannot pretend its law creates no real burden for abortion patients in the face of ample evidence that it would shutter clinics,” Stern writes. “But the chief justice then whittled down the holding of Whole Woman’s Health, replacing its balancing test with a stingier rule that may give states broader leeway to restrict abortion. Roberts expressly disavowed Breyer’s test, which weighed a law’s benefits to patients against its burdens.”