Analysis: Justice Roberts has some pro-lifers rethinking strategy

Washington D.C., Jun 29, 2020 / 15:59 pm

In 2005, John Roberts' confirmation as Chief Justice of the U.S. Supreme Court was hailed by many pro-life groups as an encouraging sign in the fight against legalized abortion. With the right combination of Supreme Court justices, they hoped, the court would overturn the 1973 Roe v. Wade decision that established a nationwide "right to abortion."

Today, 15 years later, Roberts cast the deciding vote in striking down a Louisiana law requiring abortion doctors to have admitting privileges at a local hospital (June Medical Services, LLC v. Russo).

In his opinion, Roberts invoked the principle of stare decisis - the idea that if the court has already ruled on a certain issue, that precedent should generally be respected. He pointed to the court's decision in Whole Woman's Health v. Hellerstedt, which struck down a similar Texas law in 2016. Roberts dissented in the 2016 case. In today's opinion, he said he still thinks the Texas case was decided wrongly, but believes the principle of stare decicis means the question is settled, at least for now.

Stare decisis is not absolute. The court has overturned its previous decisions, in landmark decisions like Brown v. Board of Education and in many smaller and less noted cases. Roberts himself authored one such opinion last year (Knick v. Township of Scott). In this case, however, he says there is not sufficient reason to overturn the previous ruling, even if he believes it to be flawed. Because the Louisiana law in question in this case is similar to the Texas law, he believes the previous ruling should apply in this case as well.

Roberts' dissenting colleagues were quick to argue that his reasoning was flawed. Justice Samuel Alito noted that the Texas decision was based not on the text of the statute itself but on the concrete consequences of the legislation in the state, which were tied to specific factors in Texas that might not be present in other states. Since the circumstances in Louisiana were different, Alito said, the case should be considered independently rather than defaulting to the previous ruling.

Today's outcome is a disappointment for pro-life advocates who had been hoping for a favorable court decision. But it has also raised serious questions about a political strategy being employed by some in the pro-life movement.

For the last several years, pro-life laws have been enacted in states throughout the country. Some prohibit abortions for specific reasons, such as a Down syndrome diagnosis or the sex of the child. Others establish requirements for those seeking abortions, such as mandatory waiting periods, ultrasound requirements, and parental notification or consent rules. Still others - such as the Louisiana and Texas laws - establish safety standards for abortion clinics.

According to the pro-abortion Guttmacher Institute, more than 400 of these laws have been passed at the state level in the last decade. Often, lawmakers carefully craft these bills to limit and restrict abortion in a way that will stand up to judicial scrutiny. Roe v. Wade and subsequent court cases established a framework for abortion regulations – the closer an unborn baby is to viability, the more restrictions on abortion are generally deemed to be constitutional. In the earliest weeks of pregnancy, court precedent says, government cannot limit abortion in a way that places an "undue burden" on women.

In recent years, however, there has been a shift of focus in some states, with legislators enacting laws that openly and intentionally violate this framework.

Several states have passed heartbeat bills, banning abortion after a fetal heartbeat can be detected, around six weeks into pregnancy. While these laws have historically fared poorly in court, supporters have advocated their continued passage, hoping that they would end up before a favorable Supreme Court, which could then take the opportunity to deliver a fatal blow to Roe v. Wade.

Last year, Alabama passed a law making abortion a felony. Sponsors were explicit that the legislation was designed to defy Roe v. Wade and intended to draw a court challenge.

Roberts' opinion today has given pause to advocates of this strategy, some of whom are reconsidering the premise that underlies it.

Four years ago, Donald Trump courted conservative religious voters by promising to appoint only "pro-life justices." But dividing justices into "pro-life" and "pro-abortion" camps is a dangerous oversimplification of how judges understand themselves. Justices are not politicians, who exhibit loyalty to the platform of a certain party, knowing that they must face voters every few years in a new round of elections.

Court decisions are far more complicated, and rulings incorporate a variety of legal principles and technicalities. While certain judicial philosophies lend themselves more closely than others to a view that recognizes the right to life of the unborn, some pro-life advocates are beginning to realize judges expected to rule in favor of pro-life laws may well continue to rule against them.

With several more state abortion laws working their way through the court system, including some that fly directly in the face of Roe, conservatives may now find themselves increasingly nervous. Rather than either overturning Roe in one fell swoop or chipping away at it slowly, as has been the expectation, these state challenges could backfire, and result in abortion precedents being reaffirmed and further enshrined, pushing the pro-life movement further away from its political goals.

It is not clear how Roberts would vote on some of these cases. Doubts have also been raised about Neil Gorsuch, a Trump appointee who surprised many observers earlier this month by authoring an opinion ruling that sex-based discrimination protections apply to sexual orientation and gender identity.

Already, some political-minded pro-life groups are using today's ruling to double down on their argument that Americans must vote for Republican candidates, that the next judge appointment will be the one to secure the nail in the coffin of Roe v. Wade. But for some pro-life advocates, today's ruling has made clear that ending legal protection for abortion is not as simple as appointing certain judges, and that those who see ending abortion as a problem with a solely - or even primarily - judicial remedy may find themselves sorely disappointed.