Pro-life supporters found a small silver lining in Chief Justice John Roberts’ decision to side with the liberal justices on the Supreme Court to strike down a Louisiana abortion law but not join in their legal opinion.
Roberts wrote a concurring opinion in the June Medical Services v. Russo case, in which the justices, in a 5-4 vote, found a state law requiring doctors performing abortions to having admitting privileges at a hospital within 30 miles of the clinic to be unconstitutional.
The chief justice sided with Justices Stephen Breyer, Ruth Bader Ginsburg, Sonia Sotomayor and Elena Kagan in determining the requirement placed an undue burden on a woman’s right to obtain an abortion, but he did not just sign on to the opinion written by Breyer.
Roberts cited the 2016 Whole Woman’s Health v. Hellerstedt in which the Supreme Court had ruled an almost identical law in Texas was unconstitutional.
What confused court-watchers was that Roberts had dissented in that case, arguing the Texas law could stay in place.
In his Monday concurring opinion, the chief justice hung his hat on the doctrine of stare decisis.
“The legal doctrine of stare decisis requires us, absent special circumstances, to treat like cases alike,” Roberts wrote. “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.”
However, in a footnote to his opinion, Roberts left the door open that other states may be able to enact laws in which requiring doctors to have hospital admitting privileges would not place an undue burden on women’s ability to obtain an abortion.
The “validity of admitting privileges law ‘depend[s] on numerous factors that may differ from state to state,'” he wrote.
Pro-life advocates, as well as those supporting abortion rights, recognized the legal significance of Roberts’ words.
“The Court undoubtedly leaves the door open to uphold future health and safety protections. We need bravery on the United States Supreme Court. We need Justices who understand that the most important role of law is to protect human life — all human life,” Americans United for Life President Catherine Glenn Foster told the Daily Caller News Foundation.
James Bopp Jr., general counsel for the National Right to Life, agreed with this assessment, telling CNN the ruling will “have to be sorted out by lower courts in the future.”
Julie Rikelman, the attorney for the Center for Reproductive Rights who argued against the Louisiana law before the Supreme Court, conceded that Roberts’ opinion was “obviously concerning for us.”
“Roberts clearly did say that this law is unconstitutional, that it imposes an undue burden to abortion access in Louisiana,” she told CNN, but she added, “What the other parts of the opinion will mean will play out in the coming years. We think the opinion did muddy the waters a bit, and so will lead to more litigation rather than less.”
Pro-life Susan B. Anthony List President Majorie Dannenfelser argued Roberts has also succeeded in motivating those who support the right to life to engage all the more in this November’s election.
She tweeted, “Only Roberts could achieve (albeit inadvertent) what we in the PL movement could not achieve on our own—renewed intensity in Presidential and Senate battlegrounds among ProLife Democratic, Republican and Independent voters.”
Only Roberts could achieve (albeit inadvertent) what we in the PL movement could not achieve on our own—renewed intensity in Presidential and Senate battlegrounds among ProLife Democratic, Republican and Independent voters. Who names the next justice wins.
— MarjorieDannenfelser (@marjoriesba) June 29, 2020
Mallory Quigley, vice president of communications with the SBA List, added, “We always knew we needed a bigger margin on the court, and whoever wins the election will likely have the opportunity to appoint additional justices.”
#SCOTUS is only adding fuel to the ???
— Susan B. Anthony List (@SBAList) June 30, 2020
She continued, “Making sure it’s President Trump and not Joe Biden is essential.”
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