by Michael C. Dorf
Tonight's decision in June Medical Services v. Gee, the Louisiana abortion case, is less significant than it would have been had the Court denied relief--for that would have signaled that five justices could be prepared to overrule the abortion right sooner rather than later. By staying the Fifth Circuit ruling, the Court merely preserved the status quo. In 2016, in Whole Woman's Health v. Hellerstedt, the Court invalidated a Texas admitting privileges requirement that was not substantially different from the Louisiana requirement that the Fifth Circuit disingenuously distinguished here. One might therefore readily conclude that the granting of the stay is simply a preservation of the status quo.
And yet, while June Medical Services should not be read for more than it is worth, it also should not be read for less than it is worth. No justice who was committed to overruling the Court's abortion jurisprudence has ever voted to block an abortion law from going into effect. (I discount Justice Alito's earlier stay in this very case, which expressly stated that it was not in any way based on the merits.) Thus, the fact that CJ Roberts joined the remaining members of the Whole Woman's Health majority is important.
Some skeptics will no doubt ask: What about Ayotte v. Planned Parenthood, the unanimous 2006 decision in which the Court (including then-rookie Chief Justice John Roberts) did not revisit its abortion precedents but seemingly applied them? To which I answer: That's not a counter-example. The Court in Ayotte considered only a remedial question and ended up narrowing the remedy that the First Circuit had issued.
It's true, of course, that a justice who is opposed to a line of decisions can purport to apply that line of decisions in a way that undercuts them. CJ Roberts himself has done just that in the affirmative action context, where he has purported to apply the Court's decisions allowing use of race, while never voting to allow any use of race. Tonight's decision is different. It disallows, at least for the time being, an abortion regulation.
Does that mean that CJ Roberts has committed himself to reaffirming Whole Woman's Health or any of the Court's other abortion decisions? No, of course not. But it does suggest that he is at least in a go-slow mode.
Tonight's decision did not just not overrule abortion rights; it suggested that the future of abortion rights will not be fully decided for quite some time. In the likely event that the Court grants cert in this case, it is possible to imagine CJ Roberts joining or even authoring an opinion along the lines of the dissent filed by Justice Kavanaugh--invoking fine distinctions between as-applied and facial challenge and ostensible differences between Texas and Louisiana. But it is substantially harder tonight than it was this afternoon to imagine the Chief Justice writing or joining an opinion that expressly or impliedly overrules the abortion right itself. At least it's harder to imagine that happening any time very soon.
So no, the abortion right is not safe. But it's not in quite as much immediate danger as one might have thought. And that's not nothing.