WASHINGTON — U.S. Supreme Court Chief Justice John Roberts cast the swing vote in June Medical Services v. Russo Monday, striking down a Louisiana law that required doctors at abortion facilities to have admitting privileges at a local hospital within a 30-minute radius.
The surprising decision disappointed pro-life advocates who were hopeful that he would uphold the Louisiana regulation, especially given his dissent from the 2016 Whole Woman’s Health v. Hellerstedt Supreme Court decision striking down a similar regulation in Texas.
The development is giving rise to concerns that Roberts’ reluctance to rule in favor of the Louisiana law might indicate there is limited hope that the current court will substantively roll back the U.S. legal framework for abortion that the Supreme Court has created via its 1973 Roe v. Wade and Doe v. Bolton and 1992 Planned Parenthood v. Casey decisions.
In his concurrence, Roberts wrote that while he considered Hellerstedt to be “wrongly decided,” he felt bound by that precedent to strike down the Louisiana law, citing stare decisis, legal doctrine meaning to “stand by things decided.”
However, Roberts did critique the balancing test from Hellerstedt, employed in the majority opinion by Justice Stephen Breyer, which balanced the law’s benefits against the burdens it imposed on abortion access. He argued instead for a narrower test from the 1992 Planned Parenthood v. Casey decision looking simply at whether or not a regulation poses an “undue burden” to abortion access.
Some pro-life legal experts saw a silver lining in his return to the undue-burden standard, as they viewed the balancing test as a more difficult standard for pro-life legislation to meet. Others, however, were frustrated by the chief justice siding with the court’s four liberal members in setting aside a conflict-of-interest question, by finding that the abortion providers in the case had standing to sue on behalf of women even though the lawsuit was against health-and-safety regulations to protect women.
Roberts’ motivations in this week’s decision are not entirely clear, but some observers contend that he is continuing a pattern of punting on polarizing political cases in an effort to make the court appear neutral. And while Roberts presently wields an outsized influence as a swing vote, it could be short-lived, depending on who appoints the next Supreme Court justice.
For the moment, his opinion in this case leaves a great deal of room for interpretation on how the Supreme Court might rule on pro-life legislation in the future.
‘Stare Decisis on Steroids’
Steve Aden, chief legal officer at Americans United for Life, told the Register that Roberts’ appeal to precedent could be called “stare decisis on steroids.”
Aden explained that while Roberts conceded that the court was “wrong the last time out and the majority of the judges on this court think we were wrong the last time out,” he nevertheless held that the flawed 2016 Hellerstedt opinion should not be overturned “until someone can demonstrate that there are special circumstances beyond the mere fact that the Supreme Court got a fundamental decision relating to constitutional law wrong.”
“I think that if the court gets a fundamental premise of constitutional law wrong, they ought to fix it; but that’s not what the chief justice is saying,” Aden said.
Carrie Severino, president of the Judicial Crisis Network and a former law clerk of Justice Clarence Thomas, told the Register June 30 that the ruling was “anomalous” for the chief justice, and “up until yesterday he has never voted to strike down a regulation on abortion.”
She criticized his application of stare decisis in the case, saying that while he discussed “how to decide when you should leave a case standing even though you believe it’s incorrectly decided,” he “oddly didn’t even really go into detail about why those considerations apply in this case.”
“That’s frustrating; it’s not a principled legal approach,” Severino said. “We know in the past he has been willing to overturn prior decisions that are much older and had more reliance on them, so it’s an anomalous case, in that sense.”
Ilya Shapiro, director of the Robert A. Levy Center for Constitutional Studies at the Cato Institute, remarked on this, as well. “Chief Justice Roberts’ capricious application of stare decisis is startling,” he wrote in an online commentary. “After all, stare decisis didn’t stop him from overturning precedent in Citizens United v. FEC (2010), Janus v. AFSCME (2018) and Knick v. Township of Scott (2019), cases in which the precedent was much older and more entrenched, but a very recent close decision in which he dissented apparently carries more weight.”
Shapiro also noted that his reasoning on stare decisis was not consistent with Roberts’ stance in past abortion cases, highlighting “his vote in Gonzales v. Carhart (2007), which upheld the federal ban on partial‐birth abortion a mere seven years after the Court invalidated a similar Nebraska ban in Stenberg v. Carhart (2000).”
Severino said there was “a pattern with the chief justice where it seems that his initial instinct to call balls and strikes, as he talked about during his confirmation hearing, is in tension with a desire not to have the court come in for criticism, particularly from the elites, the media.”
Severino, a veteran of the Brett Kavanaugh confirmation battle, acknowledged that “a decision overturning Louisiana’s abortion law would have brought that kind of criticism.”
The impact of the decision could be favorable for the pro-life movement, John Bursch, senior counsel at Alliance Defending Freedom, told the Register. That’s because, with Justice Roberts’ concurrence regarding Hellerstedt, “there’s five justices, that’s a majority, that actually repudiated the reasoning of that Texas decision.”
“The Texas case created a very high bar that made it difficult for pro-life legislation to survive a judicial review,” Bursch noted. “He [Roberts] said, ‘No, I’m putting the bar back down where it’s supposed to be,’ and so I think, as we go forward, he’ll be open to arguments that other legal rules in the pro-life context that aren’t well-grounded in the Constitution … are also going to have to fall.”
“We’ve got to keep chipping away at Roe; and at some point, I think Chief Justice Roberts will be willing to revisit that decision entirely,” he said. “The viability line is always moving as medical science improves — what states could not prohibit in the 1970s when Roe was decided they can prohibit today.”
Bursch’s perspective is shared by some pro-abortion legal analysts. Gretchen Borchelt, vice president for reproductive rights and health at the National Women’s Law Center, wrote at SCOTUSblog.com that Roberts “appears open to revisiting” Casey’s undue-burden standard “when he says, ‘No one asked the Court to reassess the Constitutional validity of the undue-burden standard.’ That is not a statement of fact; it’s an invitation.”
Aden agreed that a “very bright silver lining in this case” is “that you still have five votes on this court to apply the undue-burden standard that would uphold common sense health-and-safety regulations in most cases.” However, Aden believed the undue-burden rule itself was not tenable “in the long run,” because “it doesn’t take into account a situation which, I think, is not uncommon, where a basic health-and-safety law would also close the doors of shoddy, fly-by-night abortion facilities.”
“You can’t hold on to a position that only looks at the burden, that doesn’t ask: Is this a legitimate health-and-safety law?” he said.
The Interests of Women
Another important question in this case was whether abortion providers had the standing to sue on behalf of women, given the potential conflict of interest with them on health-and-safety regulations.
Teresa Collett, a professor at the University of St. Thomas Law School in Minnesota, took issue with the way the court handled that question. She told the Register that Roberts, in his June Medical opinion, “accepts court cases allowing the abortion industry to sue claiming they are representing the interests of women regardless of whether that statement is true or not.”
Chief Justice Roberts did not address the question at length, but agreed with Justice Breyer, who wrote that Louisiana had waived that question in lower court and that “a long line of well-established precedents foreclose its belated challenge to the plaintiffs’ standing.”
Justice Samuel Alito wrote in his dissent that “the idea that a regulated party can invoke the right of a third party for the purpose of attacking legislation enacted to protect the third party is stunning. Given the apparent conflict of interest, that concept would be rejected out of hand in a case not involving abortion.”
An amicus brief Collett filed in the case for the Charlotte Lozier Institute and Concerned Women for America examined data from 637 federal cases showing that “there are almost no cases filed by women alone challenging conscience rights, informed-consent requirements, fetal-disposition laws, and provider regulations generally. This pattern suggests that women either generally support or at least do not oppose laws like the one before this Court today that are aimed at providing them with more information, safer, cleaner facilities, and more skilled providers.”
Louisiana state Sen. Katrina Jackson, D-Monroe, who authored the law in this case, told the Register that the court’s decision “was not in line with basic women’s health, protecting women and offering women equal access to true health care.”
Implications for the Pro-Life Movement
But, the article immediately added, “perhaps not for long,” pointing out that Roberts’ unexpected positioning on this case did not necessarily mean he will side with the abortion lobby on other cases now in the judicial pipeline. The Times’ article also suggested that the June Medical outcome will stiffen the resolve of the pro-life movement to re-elect President Donald Trump, who has promised to appoint conservative pro-life jurists to the Supreme Court.
Vice President Mike Pence tweeted Monday that “after today’s disappointing decision by SCOTUS, one thing is clear: We need more Conservative justices on the U.S. Supreme Court.”
By contrast, presumptive Democratic nominee Joe Biden, who is Catholic, hailed the decision in a June 29 statement. He also specifically promised that, if elected, he will move to prevent the passage of pro-life state laws that undermine or restrict legal abortion.
Said Biden, “As President, I will codify Roe v. Wade and my Justice Department will do everything in its power to stop the rash of state laws that so blatantly violate a woman’s protected, constitutional right to choose.”
As The New York Times analysis indicated, pro-life leaders were discouraged by the decision but also thought it could motivate voters, as it illustrated the need for more conservative justices on the high court. They also emphasized that the pro-life movement is multifaceted, and efforts will continue to change the hearts and minds of the American public.
Jeanne Mancini, president of the March for Life, told the Register that she was “dismayed” by the decision, particularly “with this makeup of the Supreme Court” and “in light of the chief going differently on Hellerstedt.”
She said that while the decision is “deeply discouraging,” the pro-life movement is still “making strides in all sorts of different ways,” including an increase in pregnancy-care centers over the past 25 years, a decrease in the number of abortion businesses, and recent polling showing that a majority of Americans would limit abortion in some way.
Mancini also predicted the decision could motivate voters this election because “the next president will make one, maybe even two Supreme Court decisions which will have a massive influence on culture.”
In a statement, Susan B. Anthony List President Marjorie Dannenfelser called it “imperative” to “re-elect President Trump and our pro-life majority in the U.S. Senate so we can further restore the judiciary, most especially the Supreme Court.” She added that the fulfillment of Trump’s promise to appoint constitutionalist Supreme Court justices “is evidenced by Justices Gorsuch and Kavanaugh, who joined with Justices Thomas and Alito and dissented” in this case.
Sen. Jackson said that while the result in this case was disappointing, “there’s going to be some adversity when you stand for God and for the least among us; and even when adversity comes, you may get discouraged for a moment. Trust me I did, but that doesn’t mean you stop fighting.”
Lauretta Brown is the Register’s Washington-based staff writer.