Maybe The Best Defense is a Good Offense
Chief Justice John Roberts surprised some observers when he joined his four liberal colleagues to grant a stay of this decision by the U.S. Court of Appeals for the 5th Circuit in June Medical Services v. Gee
. The law requiring physicians performing abortions to have admitting privileges at nearby hospitals of Louisiana was blocked by the stay. The petitioners contended that the distinctions drawn by the allure court between both nations’ legislation were unpersuasive. By voting to stay exactly the Louisiana law, was signaling a retreat from his position there? Does he accept that the court’s abortion jurisprudence?
Perhaps, but there is a simpler and likelier explanation. Roberts cares a great deal about the Supreme Court. When a state court or reduced court defies or evades the precedents of the court, the court’s authority is challenged by it. Accordingly, it is easy to imagine that the chief prosecution believes Whole Woman’s Health
along with also the cases it implemented — such as Roe v. Wade
and Planned Parenthood v. Casey
— should be overruled. However, he does not take to courts usurping his court’s prerogative of determining whether and when to overrule its own cases.
In case institutionalism better explains Roberts’ remain vote than does one change of heart to the merits, then the questions posed by this symposium — if the court grant certiorari and, in that case, how should it rule? — are debatable for citizens, lawyers and scholars who, like me, believe the court shouldn’t cut back on the constitutional abortion right.
To be slightly more precise, only the first question poses a problem. The next question is simple. As I claimed in an article to get a SCOTUSblog symposium
on that situation, Casey
did not displace that portion of the holding in Roe
that prohibits the state from imposing obstacles to abortion simply by the pretense of promoting women’s health.
Additionally, Justice Stephen Breyer’s majority opinion in Whole Woman’s Health helpfully clarified that which was already implicit in the idea of an undue weight — that whether a law regulating abortion is inherent is based on part on whether the burdens it imposes for women in fact promote well-being (or any other compelling government interest). It is unconstitutional — because an admitting-privileges requirement does not advance the state’s asserted health fascination in any way — at Louisiana or Texas.
If I could say with confidence that a majority of the existing Supreme Court would intentionally use its abortion jurisprudence, then I would recommend the court to grant the request for a writ of certiorari in June solely for the purpose of summarily reversing the 5th Circuit. I’m unsure what to advocate, because I lack that confidence.
Should the Supreme Court deny certiorari in June
, its live order would dissolve by its terms. The end result would be to deny access to legal abortion into a terrific many women in Louisiana. But that’s not all. Allowing the Circuit ruling to go into effect will embolden that court to uphold other legislation from Mississippi, Louisiana and Texas. It would send exactly the same signal to other federal judges around the nation — a team that becomes much more hostile to abortion rights almost from the day, thanks to the laser-like focus
on changing the judiciary of both Senate Majority Leader Mitch McConnell and the Trump administration.
Yet awful because a cert denial would be for abortion rights, so a cert grant poses the threat of an outright overruling of Roe, Casey along with Whole Woman’s Health. More likely but perhaps equally dangerously, the Supreme Court could grant cert in June, put the case on its plenary docket, also, following briefing and argument, affirm the 5th Circuit’s judgment upholding the Louisiana law based on a unpersuasive distinction between the Texas and Louisiana legislation.
There is precedent for such a move. Although the court invoked some minor differences between the Nebraska and federal laws, the difference was at the court’s employees. In the meantime, Justice Samuel Alito replaced Justice Sandra Day O’Connor; flipping that the result was reversed by vote. As we have seen from Kavanaugh’s dissent in the stay order in June, he appears prepared to draw some rather nice distinctions to avoid invalidating the Louisiana diplomatic law.
That leaves Roberts as the one justice even potentially in play. By voting to grant the stay in June, he indicated that he does not believe the 5th Circuit persuasively celebrated the Texas and Louisiana legislation. Perhaps with more time he will discover some hitherto unknown distinction persuasive, but it’s also possible that he will vote to violate Whole Woman’s Health, dependent on reasoning like that in Alito’s dissent in that case, which Roberts combined. In Part III of the Whole Woman’s Health dissent, Alito claimed that the Texas law didn’t unduly burden the abortion because, among other items, dependent on one tendentious reading of this document, 95% of Texas women would need to travel”only” a distance of 150 kilometers or not to obtain an abortion provider.
It’s not easy to state whether abortion rights could be less secure if the Supreme Court at June were to feign to employ its pre-Whole Woman’s Health precedents while actually hollowing them out or were simply to overrule its abortion-rights precedents forthrightly. With the course, defenders of abortion rights could have a focus around which to rally from the governmental world.
Nevertheless, an individual should not spend much energy wondering if disingenuous program or blatant rejection of the abortion cases is worse. The Supreme Court under Roberts’ direction has tended to apply these moves in tandem, first weakening a legal doctrine or principle and discarding its empty husk.
On second consideration,”opening” is the wrong word. A Supreme Court ruling upholding the Louisiana legislation in June
would be the near-culmination of a near-half-century effort. Through a mixture of luck, the Electoral College, and also what Professors Joseph Fishkin and David Pozen
predict”asymmetrical constitutional hardball,” Republican presidents have termed 14 of 18 justices at the previous 50 years, despite losing the popular vote at the vast majority of presidential elections during this period. Given how fundamental overturning Roe
is to the Republican coalition, it is hardly surprising that that the abortion right is precarious. The remarkable reality is that it stays on the books in any way.