Jul 16, 2020
Disappointed prolifers were predictably angry at Chief Justice John Roberts for providing the fifth vote in the five-member Supreme Court majority that last month struck down a Louisiana law requiring doctors who do abortions to meet one mildly restrictive prescription. It was no surprise that the court’s four liberals – Justices Ginsburg, Breyer (who wrote the opinion), Sotomayor, and Kagan – voted as they did, but Roberts, a conservative, came as a shock..
Hold on though. Granted, it would have been gratifying if the Chief Justice had supported the Louisiana law instead of citing stare decisis as grounds for voting against. But a sober reading of his opinion as a whole suggests that prolife critics may have reasons for thanking him in the not too distant future.
With hindsight, it’s unfortunate that the Louisiana case ever reached the Supreme Court. Just four years ago it overturned a virtually identical Texas law prescribing that doctor who perform abortions have admitting privileges at a nearby hospital. But note that the Chief Justice specifically refrained from endorsing the substance of the opinion by Breyer, who also authored the majority opinion in the Texas case. Instead, Roberts took a different line that points to the possibility of a different outcome in future cases involving different state laws.
Two such cases from Indiana (both of them presently go by the name Box v. Planned Parenthood) are now in the 7th Circuit U.S. Court of Appeals, which the Supreme Court, two days after its Louisiana decision, told to take a fresh look at the laws involved. One requires that women be offered ultrasounds before abortion, the other that parental consent precede abortions performed on minors.
Here what Roberts said becomes important. He argued for a formula that, subtly but truly, tips the balance more in favor of restrictive state laws than it’s been tipped for years.