Protesters for and against abortion rallied March 2 outside the U.S. Supreme Court as the justices heard argument in "Whole Woman's Health v. Hellerstedt." Credit: Diego M. Radzinschi / NLJ

With his vote Monday striking down Louisiana's abortion law, Chief Justice John Roberts Jr., for the third time in two weeks, joined his liberal colleagues on the U.S. Supreme Court in rulings that dismayed or angered his colleagues on the right.

Justice Neil Gorsuch "certainly is wrong" and "Justice [Samuel] Alito misunderstands," Roberts wrote in various footnotes defending his opinion concurring in the court's 5-4 judgment in the Louisiana case June Medical Services v. Russo.

Roberts on June 18 led the 5-4 majority that ruled the Trump administration had violated federal law when it attempted to wind down the delayed deportation program for so-called Dreamers. His opinion was joined by Justices Ruth Bader Ginsburg, Stephen Breyer, Sonia Sotomayor and Elena Kagan. And on June 15, he joined those four justices and his conservative colleague Neil Gorsuch in the 6-3 ruling that Title VII's ban on discrimination "because of sex" covered discrimination based on sexual orientation and gender identity.

Abortion decisions tend to bring out a higher degree of heated dissents not often reflected in the justices' disagreements with each other. The recent rulings have renewed criticism of Roberts from social conservatives, and even the Trump White House, which on Monday declared "unelected justices"—without naming them—had intruded on the power of states to set their own rules for abortion rights.

Among progressives, there was a sense that Roberts, although providing the key vote to strike down a restrictive state abortion clinic law, had left open a broader challenge to reproductive rights.

"We are concerned about his opinion," said Julie Rikelman of the Center for Reproductive Rights, who argued the Louisiana case on behalf of June Medical. "He didn't join the Breyer [plurality] opinion."

The chief justice's opinion in the Louisiana abortion case was based primarily on stare decisis. He viewed the Louisiana case as nearly identical to the court's decision in 2016 striking down a hospital admitting privileges law in the Texas case Whole Woman's Health v. Hellerstedt. Roberts dissented from that Texas decision. In that case, a 5-3 majority ruled that the Texas law had no medical benefits and imposed an undue burden of a woman's right to access abortion.

The stare decisis doctrine requires judges, Roberts said, "to treat like cases alike. The Louisiana law imposes a burden on access to abortion just as severe as that imposed by the Texas law, for the same reasons. Therefore Louisiana's law cannot stand under our precedents."

He said at another point in his concurrence that he continued to believe that the Whole Woman's Health ruling was wrongly decided. "The question today however is not whether Whole Woman's Health was right or wrong, but whether to adhere to it in deciding the present case," he wrote.

In the Louisiana ruling, dissenting Justices Gorsuch and Samuel Alito Jr. argued that the majority in Whole Woman's Health balanced benefits and burdens to reach its decision in conflict with the test announced by the court in Planned Parenthood v. Casey in 1992. They trained their sights on Roberts' statement in his concurring opinion: "Whole Woman's Health held that Texas's admitting privileges requirement placed 'a substantial obstacle in the path of women seeking a previability abortion,' independent of its discussion of benefits."

"Justice Gorsuch considers this is a 'nonexistent ruling' nowhere to be found in Whole Woman's Health. I disagree," Roberts wrote in a footnote. He said the discussion of benefits in that case was not necessary to its holding because after the discussion, the majority "transitioned" to examining the law's burdens.

Judge Neil Gorsuch testifies before the Senate Judiciary Committee on March 21, 2017. Credit: Diego M. Radzinschi / NLJ

Gorsuch "certainly is wrong," Roberts wrote, to suggest that his position on the standard for reviewing abortion regulations is inconsistent with the court's abortion decision in Planned Parenthood v. Casey which disavowed "strict scrutiny."

Roberts noted that neither party in the Louisiana case had urged the court to "reassess the constitutional validity" of the Casey decision.

Alito "misunderstands my discussion of credentials as focusing on the law's lack of benefits," Roberts wrote in another footnote. "But my analysis, like Casey, is limited to the law's effect on the availability of abortion."

Roberts' insistence that a balancing of benefits and burdens of an abortion restriction had no role in evaluating its constitutionality "muddies the water a bit and will lead to more litigation, not less," said Rikelman of the Center for Reproductive Rights.

Despite their fundamental disagreements on key points, Roberts did find points of agreement with Gorsuch and Alito.

"I agree with Justice Aito that the validity of admitting privileges laws 'depend[s] on numerous factors that may differ from state to state,'" Roberts wrote. "And I agree with Justice Gorsuch that '[w]hen it comes to the factual record, litigants normally start the case on a clean slate.' Appreciating that others may in good faith disagree, however, I cannot view the record here as in any pertinent respect sufficiently different from that in Whole Woman's Health to warrant a different outcome."

Since becoming chief justice in 2005, Roberts has joined his four liberal colleagues in 5-4 decisions in only a handful of cases. After the retirement in 2018 of Justice Anthony Kennedy— the court's "swing" vote—Roberts was considered the justice most likely to be the median of the court, conservative but not as conservative as his colleagues to the right.

Last year, Roberts joined his liberal colleagues in blocking the Louisiana abortion clinic law from taking effect while the appeal was pending.

"The abortion right is not safe," Cornell Law School professor Michael Dorf wrote at the time. "But it's not in quite as much immediate danger as one might have thought. And that's not nothing."

Roberts' vote in the Louisiana case, with its reliance on following precedent, is not a signal of how he would vote in a direct attack on Roe v. Wade, or even the more recent Casey decision. But in combination with his votes in the Title VII and Dreamers cases, it may well signal to those colleagues to his right that now more than ever, they cannot take his vote for granted.

 

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