Bench Memos

Law & the Courts

Roberts’s Arbitrary Flip on Abortion

Chief Justice John Roberts departs after the impeachment trial of President Trump ended for the day in Washington, D.C., January 25, 2020. (Joshua Roberts/Reuters)

In June Medical Services L.L.C. v. Russo, we see a stark contrast between Roberts past and Roberts present. That case involved a challenge to Louisiana’s law requiring doctors who perform abortions to have admitting privileges at a local hospital. The litigation raised questions about the Supreme Court’s 2016 decision in Whole Woman’s Health v. Hellerstedt striking down a similar Texas admitting-privileges requirement and also about whether an abortion clinic and doctors have standing to challenge the statute on behalf of their patients, despite the law being designed to protect patients from unsafe clinics and abortionists.

Roberts understands the purpose of such laws. After all, he had voted to hold the similar Texas law constitutional. He joined Justice Alito’s dissent that eviscerated the Court’s logic and recognized what was at stake, citing the atrocities of Kermit Gosnell. Laws like those in Texas and Louisiana, however they vary in application in each state, were motivated substantially by the desire to avoid the kind of nightmarish conditions under which Gosnell operated.

June Medical Services stoked concerns about whether the Court would once again revert to the “abortion distortion” — ignoring normal rules of procedure in the context of abortion, treating the practice as the preeminent constitutional right, and behaving like our nation’s de facto medical board. Unfortunately, that is precisely what did happen — not because of the votes of either of the two junior justices who were not on the Court in 2016, but because Roberts changed his position, giving the liberal bloc a majority.

While the four liberal justices produced a plurality opinion that went out of its way to replicate the shoddy analysis of Whole Woman’s Health, Roberts concurred in the judgment separately. Instead of going deeply into the merits, the chief justice wrote to explain that the doctrine of stare decisis — letting erroneous prior decisions stand — compelled him to follow the 2016 precedent, even though he had dissented and “continue[d] to believe that the case was wrongly decided.”

Of course, no justice believes that prior decisions must never be overturned. Tellingly, Roberts’s discussion of stare decisis cited Payne v. Tennessee (1991), where the Court overruled two- and four-year-old precedents, and Janus v. State, County, and Municipal Employees (2018), where he joined the Court’s opinion overruling a 41-year-old precedent. So what is sacrosanct about a four-year-old precedent he felt was wrongly decided? Roberts never tells us. He did not embrace the abortion distortion previously: In 2007, he joined the Court to uphold a federal ban on partial-birth abortion in Gonzales v. Carhart, even though the Court had struck down another partial-birth ban seven years earlier.

This time, the chief decided to play politics. As Justice Gorsuch noted in his dissent: “To arrive at today’s result, rules must be brushed aside and shortcuts taken.” Gorsuch also joined Justice Alito’s dissent, which accused the Court’s fragmented majority of applying “an abortion-only rule.” The Louisiana regulation was on even stronger legal footing than the Texas regulation at issue in Whole Woman’s Health. While the two statutes were nearly identical, in Louisiana it is simpler for doctors to get admitting privileges, and if clinics were forced to close, women would not have to drive as far as in Texas to get to an alternate clinic. The legislature also had a much stronger record of health violations regarding in-state clinics, including some of the plaintiffs in the case, and of serious medical problems when women were unable to get swift hospital treatment after experiencing abortion complications.

The majority also extended the “abortion distortion” to stretch third-party standing rules so that the plaintiffs could make a challenge based upon an asserted right that supposedly belongs to women seeking abortions. Alito noted the “blatant conflict of interest between an abortion provider and its patients” since the former “has a financial interest in avoiding burdensome regulations” while the latter “have an interest in the preservation of regulations that protect their health.” Future Gosnells will be grateful that position did not command a majority.

Thomas, for good measure, wrote a separate dissent discussing further the lack of pedigree for third-party standing and calling Roe v. Wade “grievously wrong” to begin with. In another separate dissent, Justice Kavanaugh, who like Thomas had joined most of Alito’s dissent, noted that when Roberts’s opinion was read next to those of the four dissenters, it amounted to a rejection of the cost–benefit standard of Whole Woman’s Health.

So much for stare decisis. But in a perverse way, that result adopts the spirit of Planned Parenthood v. Casey’s own odd conception of stare decisis. After all, the 1992 precedent had, in the name of stare decisis, rejected Roe’s trimester framework and overruled other abortion precedents from 1983 and 1986. And as Alito pointed out, Whole Woman’s Health had altered Casey’s standard with its “bulldozer” approach seeking to “flatten legal rules that stand in the way.”

Roberts’s arbitrary application of stare decisis to preserve a four-year-old precedent he continues to regard as wrongly decided does nothing to clear away the fog.

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