Ilyse Hogue, head of NARAL Pro-Choice America, tells me: “Today’s decision is a victory for women and a victory for the rule of law, two vital components of a functioning democracy. The radicals that put Kavanaugh on the bench are disappointed but not defeated.” She warns, “They’ll try again. We have to stay vigilant and flip the Senate to be sure we have no more close calls.”
The decision is also bad news for Sen. Susan Collins (R-Maine), who disingenuously claimed both Kavanaugh and Gorsuch would uphold Roe v. Wade. If not for Roberts, her votes on confirmation would have been disastrous for pro-choice voters who have supported her through the years. Her chances of reelection, already slim, have become even worse.
The decision itself is a tribute to precedent, and the concurrence is a testament to Roberts’s mission to preserve the integrity of the court — that is, to prevent it from becoming a handmaiden to the right. In an opinion by Justice Stephen G. Breyer, the court made an initial but critical procedural ruling maintaining the standing of abortion clinics to challenge abortion legislation on behalf of their patients. Turning to the merits, Breyer wrote:
We apply the constitutional standards set forth in our earlier abortion-related cases, and in particular in Casey and Whole Woman’s Health. At the risk of repetition, we remind the reader of the standards we described above. In Whole Woman’s Health, we quoted Casey in explaining that “‘a statute which, while furthering [a] valid state interest has the effect of placing a substantial obstacle in the path of a woman’s choice cannot be considered a permissible means of serving its legitimate ends.’” . . . . We added that “ ‘[u]nnecessary health regulations’” impose an unconstitutional “‘undue burden’” if they have “‘the purpose or effect of presenting a substantial obstacle to a woman seeking an abortion.’”
Breyer agreed that even if the law "could be said to further women’s health to some marginal degree, the burdens it imposes far outweigh any such benefit, and thus the Act imposes an unconstitutional undue burden.” He explained, “The evidence shows, among other things, that the fact that hospital admissions for abortion are vanishingly rare means that, unless they also maintain active OB/GYN practices, abortion providers in Louisiana are unlikely to have any recent in-hospital experience.” After meticulously reviewing the factual record, he concluded:
We conclude, in light of the record, that the District Court’s significant factual findings—both as to burdens and as to benefits—have ample evidentiary support. None is “clearly erroneous.” Given the facts found, we must also uphold the District Court’s related factual and legal determinations. These include its determination that Louisiana’s law poses a “substantial obstacle” to women seeking an abortion; its determination that the law offers no significant health-related benefits; and its determination that the law consequently imposes an “undue burden” on a woman’s constitutional right to choose to have an abortion. We also agree with its ultimate legal conclusion that, in light of these findings and our precedents, [the Louisiana law] violates the Constitution.
Given the 5-to-4 decision, it is Roberts’s concurrence that is decisive. He writes, “The legal doctrine of stare decisis requires us, absent special circumstances, 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.” This is his effort to prevent the court from acting as a legal weather vane, flipping with the political winds and thereby removing confidence that the court is acting on legal, not political, principles. He concludes: “Stare decisis instructs us to treat like cases alike. The result in this case is controlled by our decision four years ago invalidating a nearly identical Texas law. The Louisiana law burdens women seeking previability abortions to the same extent as the Texas law, according to factual findings that are not clearly erroneous.”
Even though Roberts voted to uphold the Texas law, he acts here as the institutional voice of the court. The court will not be used on his watch as a vehicle to enact major policy shifts by one party or another. The long line of cases behind the Texas law from Roe to Casey to Whole Woman’s Health is not one Roberts was willing to disturb. (“The doctrine also brings pragmatic benefits. Respect for precedent ‘promotes the evenhanded, predictable, and consistent development of legal principles, fosters reliance on judicial decisions, and contributes to the actual and perceived integrity of the judicial process.’ ... It is the ‘means by which we ensure that the law will not merely change erratically, but will develop in a principled and intelligible fashion.’ ”)
For now, Roberts has thwarted the right’s hope to uproot 45 years of precedent. That effort, however, will last only so long as five justices respectful of precedent remain on the court. Within the next four years, at least one of the five is likely to leave the court either by death or retirement. Thus, the 2020 election remains, among other things, a referendum on whether the right’s long-sought legal revolution and social agenda will succeed.
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