WASHINGTON — During his 2005 confirmation hearing, U.S. Supreme Court Chief Justice John Roberts described cases that overturned precedent as “a jolt to the legal system.”

Precedent, he said, “plays an important role in promoting stability and evenhandedness.”

But when Roberts recently sided with the high court’s liberal wing and voted to block a Louisiana law that restricted abortion providers, it was the pro-life movement that felt the jolt.

As headlines marked the eleventh-hour reprieve for Louisiana’s three abortion providers Feb. 6, pro-life activists tried to bolster their supporters’ spirits.

“There are so many cases making their way to the court that this is not the last word,” Marjorie Dannenfelser, the president of the Susan B. Anthony List, told The New York Times. Dannenfelser noted that the passage of other pro-life legislation at the state level, and the appointment to the Supreme Court and appellate bench of originalist jurists, who interpret the U.S. Constitution according to the understanding of its framers, increased the likelihood that legal abortion would soon face sharp limits.

But Roberts’ surprise ruling has fueled an intense debate among legal analysts over the reasons behind his decision. The discussions included a review of Roberts’ past ruling on a landmark abortion case, but also touched on his long-standing concerns about a politicized Supreme Court that plays a powerful role in the culture wars.

The contested Louisiana law, enacted in 2014, requires the state’s abortion providers to have admitting privileges in a hospital within 30 miles of their facilities. The plaintiffs and their political allies claim that the regulation would force the closure of the abortion businesses, thus imperiling a constitutionally protected right.

Court watchers have pointed to Roberts’ past remarks expressing respect for legal precedent to explain his decision, and abortion-rights supporters recalled his recent ruling that denied review of two other sensitive cases, which involved efforts to defund Planned Parenthood. 

Others speculated that Roberts sought to defuse the court’s ideological divisions by issuing a vote that suspended the law, but did not address the merits of a case that could be taken up by the justices later this year.

The chief justice’s ruling suggests “that he is at least in a go-slow mode,” Michael Dorf, a professor at Cornell Law School, wrote in a widely circulated blog post.

Despite the presence of five conservative justices on the court, said Dorf, Roe v. Wade “is not in quite as much immediate danger as one might have thought. And that’s not nothing.”

 

Avoid Premature Conclusions

Yet pro-life legal specialists said it would be a mistake to draw any conclusions from Roberts’ decision to suspend the law.

“It is hard to read anything into the chief justice’s vote,” said Carrie Severino of the Judicial Crisis Network, a politically conservative group that has played a lead role in Supreme Court confirmation battles.

The justices have put things “on hold” until they have an “opportunity to decide to hear the case on its merits,” she said.

Severino told the Register that the legal arguments on both sides would likely be fine-tuned before the justices take up the case, and so it was too soon to predict an outcome.

That said, she offered a glimmer of hope for the pro-life movement, as she cited Roberts’ dissent in the Supreme Court’s most significant abortion case in decades: 2016’s Whole Woman’s Health v. Hellerstedt.

In that case, the court overturned parts of a Texas law that required abortion providers to meet the higher standards demanded of ambulatory surgical centers and also have admitting privileges in nearby hospitals.

Texas abortion businesses argued that the regulations would put them out of business, and they contended that a reported 50% decline in the number of abortion facilities in the state confirmed their claim.

In a 5-3 decision, the court found that the Texas law placed an “undue burden” on a woman’s ability to obtain an abortion.

That opinion was challenged in a dissent written by Justice Samuel Alito, joined by Roberts and Justice Clarence Thomas. Alito wrote that there could be other reasons for the closure of half the state’s 40 abortion sites, including decreased demand for the procedure.

If Roberts was prepared to allow Texas’ law to stand, said Severino, it is much less likely that he would vote to overturn the Louisiana statute.

 

Evaluating the Law

But the Texas case hinged on opposing evaluations of the law’s alleged impact on-site access over time, and both sides presented data to support their position. In contrast, the Louisiana law has been put on hold, so it will be more difficult to document its impact — a point Justice Brett Kavanaugh raised in a separate dissent to the majority opinion.

If the Louisiana case does reach the Supreme Court, it will “depend in the first instance on whether the three abortion doctors at the center of the dispute succeed in gaining admitting privileges,” said Gerard Bradley, a professor at the University of Notre Dame Law School, who predicted that the chief justice would uphold the law if the three providers did not face significant impediments. 

With that scenario in mind, Bradley suggested that the court’s liberals, Justices Elena Kagan, Stephen Breyer, Sonia Sotomayor and Ruth Bader Ginsburg, “would even then strike down the law, on the view that requiring admitting privileges produces no appreciable medical benefit for women securing abortions.”

If one or more of the state’s abortion providers do not secure admitting privileges, he told the Register, “the four pro-choice justices would certainly vote to overturn the law.”

Bradley then considered how the court’s conservative wing would likely respond to the abortion providers’ failure to secure admitting privileges and suggested that their ruling could doom the precedent set by the 2016 Texas case.

“There is surely good ground to expect that recently appointed Justices [Neil] Gorsuch and Kavanaugh would join Roberts, Alito and Thomas in overruling Whole Women’s Health and setting the court on a more abortion-restrictive path,” Bradley said.

 

Far-Reaching Consequences?

This outcome could embolden lower courts to reassess the special treatment accorded plaintiffs in abortion cases.

“This case does raise the question: Is there some constitutional requirement that the state allow substandard practice [when it involves] abortion?” asked Teresa Collett, a law professor at the University of St. Thomas Law School. Collett described the high court’s response to the Louisiana law as an example of “abortion distortion.”

“In other areas of constitutional conflict, the court routinely requires the party to show a ‘real case or controversy,’ where the facts are sufficiently certain, so they are not ruling on a hypothetical,” she said, noting that hard data had been provided to substantiate the providers’ claims.

Likewise, she raised questions about the standing of abortion providers to bring claims.

“In order for a case to proceed, it must be brought by a person whose constitutional rights will be denied or limited” — one or more individuals with “standing,” she said.

Yet the courts, Collett added, “routinely allow abortion providers to object to statutes, like those that involve informed consent, where they clearly have a conflict of interest.”

The intense scrutiny sparked by Roberts’ vote on the Louisiana case serves as a reminder that the landmark Roe v. Wade and Doe v. Bolton decisions, which legalized abortion on demand in the United States, greatly exacerbated the culture wars and have since inspired activists to use the courts to promote political and social change.

During a recent appearance at Belmont University College of Law in Nashville, the chief justice acknowledged the difficulties posed by the court’s outsized role in politics and culture.

The Framers, “who drafted the Constitution, ... risked their lives in the revolution” and undertook “great sacrifices to have the opportunity to govern themselves,” Roberts said during a Feb. 6 discussion with the law school’s dean, Alberto Gonzales, former U.S. attorney general.

The Founding Founders “would not have sat around in Constitution Hall and said, ‘I’ve got an idea: Let’s pick a handful of guys who aren’t elected, who can’t be replaced, and let’s have them make all the hard decisions,’” said Roberts.

 

Political Appearance

But today, the 2018 resignation of the court’s swing vote, Anthony Kennedy, and his replacement by Kavanaugh could make the court’s rulings appear even more “political,” at least to some Americans.

“The presence of Anthony Kennedy’s swing vote encouraged the public to view the Supreme Court as a deliberative body whose opinions were the products of reason rather than politics,” said Nicholas Phillips in a Feb. 12 column for National Review.

“But with five solid conservatives appointed by Republicans facing off against four liberals appointed by Democrats,” Phillips said the public could reach a different conclusion.

Roberts is eager to shore up the court’s credibility. And during his public comments at Belmont University, he said it would be “misleading” to label individual justices as “conservative” or “liberal.”

“Justice [Antonin] Scalia’s way of analyzing a case led him” to side with the rights of criminal defendants, Roberts noted. “I am probably the more aggressive defender of the First Amendment.”

He added, “We are not just another part of the political process.”

But just three years ago, nine unelected justices legalized same-sex “marriage,” and just a few months ago, Kavanaugh’s tumultuous Senate confirmation hearing marked a new low in toxic partisan warfare.

No doubt, the chief justice understands that the court’s standing with the public has already been compromised, as it is forced to intervene in socially divisive matters and is criticized for applying the law in a selective manner, when it comes to abortion in particular.

“People need to know we are not doing politics,” he told the law students at Belmont University. “We are applying the law.” And when the court fails in that vital mission, he added, it should be “challenged.”

If the chief justice means what he says, his future vote on the merits of Louisiana’s law restricting abortion, or on another related case wending its way through the courts, could prove to be a game changer, ushering in a new era for Supreme Court jurisprudence.

But whether this shift will be greeted with universal praise is doubtful.

Americans, said National Review’s Phillips, are deeply confused about the Framers’ role for the high court, and many label rulings they don’t like as “politicized,” whatever the basis for the decision.

“[C]onformity to the majority is not the only source of the court’s legitimacy. At least equally important is a willingness to contradict it,” said Phillips.

“When that happens, it’s proof that law is distinct from will, that courts operate as a check on the popular branches, and that the Framers’ vision of a government of separated powers remains intact.”

Joan Frawley Desmond is a Register senior editor.