The supreme court upheld the status quo on Monday, declining to further erode women’s rights for the time being. The court sided with plaintiffs representing Louisiana abortion providers in the case June Medical Services v Russo. The ruling, composed of one opinion signed by the four liberal justices and a very narrow concurrence by Chief Justice John Roberts, throws out a restrictive Louisiana law that aimed to close clinics by requiring abortion providers to obtain admitting privileges at nearby hospitals. The decision upholds the court’s own 2016 precedent, Whole Women’s Health v Hellerstedt, which threw out an identical law in Texas just four years ago.
If the Louisiana law had been upheld, getting an abortion in Louisiana would have gone from difficult to nearly impossible. The state already has a grand total of three abortion clinics, which are staffed by a total of just five providers. Only one of those providers was able to gain hospital admitting privileges as the law required, and he had already stated publicly that if the law went into effect, he would not continue providing abortions (he stated concerns about clinic security and his own personal safety as reasons to not continue as the state’s only abortion provider). That the law was overturned does not mean that abortion is now easy to get in Louisiana; like other states, Louisiana’s available abortion care is dwarfed by demand, and many women, especially in poor and Black communities, cannot reach, find or afford the abortions that they need. It is still too hard to get an abortion in Louisiana and in much of the US. This ruling simply means that it will not become even harder.
But because the Louisiana law at issue was identical to the Texas law, and because the Texas law was declared unconstitutional by the court just four years ago, the case was less about the merits than it was about the supreme court as an institution. Nothing has changed since the Whole Women’s Health decision in 2016 except the makeup of the court itself: of the nine justices who presided over Whole Women’s Health, one conservative died and one swing vote retired, and Scalia and Kennedy were replaced by arch-conservatives and committed misogynists under Donald Trump, in the form of Neil Gorsuch and multiply accused sexual assault perpetrator Brett Kavanaugh.
The question in June Medical Services, then, was not a question of law but of temperament. Now that the court has two new justices who oppose women’s rights, would they be willing to baldly defy precedent and throw out their own decision from just a few years ago? In other words, how brazenly would the court allow itself to subvert the rule of law in order to secure the policy outcomes that are desired by conservatives?
Even before oral arguments were held in early March, much of the attention in this case was focused on Roberts. A Bush appointee and ideological conservative, Roberts has felt the court lurch dramatically to the right underneath him during his tenure as chief justice, and is said to worry about the political pressures on the court from Republicans and the potential to politicize and delegitimize the institution as a result. In June Medical Services, the conflict between Roberts’ sincerely held conservative, anti-woman views and his calculated desire to preserve the legitimacy of the court, and hence his own power, came into stark relief. He had dissented in Whole Women’s Health and sided with the conservatives to uphold the restrictive abortion law; would he hold the same line again, undoing the ruling of his own court? For a while, both women’s right to access abortion and the court’s own continued respect for precedent hinged on the answer to one question: is John Roberts capable of shame?
Evidently, he is, at least somewhat. Instead of joining the liberals in declaring the Louisiana law unconstitutional on the merits, Roberts issued a narrow concurrence based on stare decisis, the legal principle that requires the court to defer to precedent – in this case, the extremely recent precedent of Whole Women’s Health. In siding with the liberals, Roberts rejected the most cynical and opportunistic of rightwing arguments, and signaled that conservatives will need to be more tactful and less brazen in their attempts to manipulate the court into delivering their policy ends.
But Roberts is no ally to the liberal wing of the court, and those who wish to see the far right’s social and legal agenda kept at bay by the judiciary should be wary of him. Like other times he has joined the liberal wing of the court to uphold some decent decision – notably in the recent Daca case – Roberts often finds himself begrudgingly on the right side of history because the conservative legal thinking that he would prefer to side with is often sloppily and stupidly executed.
In the Daca case, Roberts said that the Trump administration was wrong to remove protections from Dreamers not because Dreamers had a legal or constitutional claim to dignity and due process, but because the Trump administration had been too incompetent to properly justify the action on the bureaucratic level. Likewise, in June Medical Services, Roberts finds himself siding with women’s rights not because he believes in them – in his concurrence, he was careful to point out that he still thinks Whole Women’s Health was wrongly decided – but because the lawsuit itself represented a cynical, lazy and bad-faith attempt on the part of conservatives to exploit the new composition of the court.
His objections to the right wing’s cruelty are not based on principle, but on procedure. Once conservatives adopt a more competent and rigorous strategy in their attacks on civil liberties, we can expect Roberts to take their side.