The Supreme Court overturned Roe v. Wade — a case that legalized abortion nationwide in 1973 — in a decision Friday that fell largely along justices’ ideological lines. One justice, Chief Justice John Roberts, strayed from the pack, as he frequently does.
A majority of the nine Supreme Court justices overruled Roe and Planned Parenthood v. Casey, which reaffirmed Roe in 1992, while deciding June 24 the Mississippi abortion case Dobbs v. Jackson Women's Health Organization.
The court voted 6-3 to uphold a Mississippi law restricting most abortions after 15 weeks. At the same time, justices voted by a narrower margin, 5-4, to overturn Roe.
That’s because of Roberts.
Roberts stands out because justices appointed by Republican presidents — Roberts, Clarence Thomas, Samuel Alito, Neil Gorsuch, Brett Kavanaugh and Amy Coney Barrett — are generally considered more conservative-leaning. Likewise, Justices Stephen Breyer, Sonia Sotomayor and Elena Kagan, who were nominated by Democratic presidents, tend to lean liberal.
With the Dobbs case, Alito wrote the opinion of the court — or the opinion that a majority of the justices agreed to or joined. Breyer, Sotomayor and Kagan dissented from the majority.
Roberts took a unique position: He filed an opinion concurring in the judgment, meaning he agreed with the majority’s ruling, but not necessarily their rationale or reasoning.
In his 12-page opinion in the Dobbs case, Roberts said that he agreed with upholding Mississippi’s 15-week abortion ban, but he disagreed that Roe and Casey needed to be overturned in the process.
“The Court’s decision to overrule Roe and Casey is a serious jolt to the legal system — regardless of how you view those cases,” he wrote. “A narrower decision rejecting the misguided viability line would be markedly less unsettling, and nothing more is needed to decide this case.”
As a case, Dobbs centered on the question of “Whether all pre-viability prohibitions on elective abortions are unconstitutional.”
Roberts took the position that this question could be answered without overturning Roe. In Roe, the court ruled that states could not ban abortion before viability, which the court determined to be 24 to 28 weeks into pregnancy. Then, with Casey, the court said that states could not enforce an “undue burden,” defined by the court as “a substantial obstacle in the path of a woman seeking an abortion of a nonviable fetus.”
Roberts said that he agreed with discarding parts of Roe and Casey, particularly the “viability line,” in favor of a new standard.
“That line never made any sense,” Roberts said. Instead, he said, a woman’s “right” to abortion should “extend far enough to ensure a reasonable opportunity to choose.”
In other words, instead of determining abortion based on when an unborn baby can survive outside the womb, Roberts argued that it should be based on whether a woman has enough time to obtain an abortion after realizing that she is pregnant.
“The law at issue allows abortions up through fifteen weeks, providing an adequate opportunity to exercise the right Roe protects,” Roberts wrote, adding at another point that “there is nothing inherent in the right to choose that requires it to extend to viability or any other point, so long as a real choice is provided.”
While doing away with the viability standard, the court could have still recognized a woman’s “right” to abortion with Roe, he claimed.
“My point is that Roe adopted two distinct rules of constitutional law: one, that a woman has the right to choose to terminate a pregnancy; two, that such right may be overridden by the State’s legitimate interests when the fetus is viable outside the womb,” he said.
Roberts described what he called the “clear path” to deciding Dobbs “correctly” without overturning Roe: “recognize that the viability line must be discarded, as the majority rightly does, and leave for another day whether to reject any right to an abortion at all.”
Alito’s majority opinion responded to Roberts’ concurrence, saying it “would do exactly what it criticizes Roe for doing: pulling ‘out of thin air’ a test that ‘[n]o party or amicus asked the Court to adopt.’”
“The concurrence’s most fundamental defect is its failure to offer any principled basis for its approach,” the majority opinion continued. “The concurrence makes no attempt to show that this rule represents a correct interpretation of the Constitution. The concurrence does not claim that the right to a reasonable opportunity to obtain an abortion is ‘deeply rooted in this Nation’s history and tradition’ and ‘implicit in the concept of ordered liberty.’
“Nor does it propound any other theory that could show that the Constitution supports its new rule. And if the Constitution protects a woman’s right to obtain an abortion, the opinion does not explain why that right should end after the point at which all ‘reasonable’ women will have decided whether to seek an abortion.”
“The concurrence’s quest for a middle way would only put off the day when we would be forced to confront the question we now decide,” the majority opinion responded. “The turmoil wrought by Roe and Casey would be prolonged. It is far better — for this Court and the country — to face up to the real issue without further delay.”