Thursday, February 07, 2019

The Significance of Chief Justice Roberts Joining in the Stay of the Louisiana Abortion Law

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.


Joe said...

I never really thought that Roberts would want to simply overturn Roe itself.

This sort of law is quite burdensome, as Leah Litman (Take Care Blog etc.) has shown. But, it isn't quite a fetal heartbeat law that is a more direct ban.

The move here is both following Roberts' long game approach and institutionally more "court-like" though Eric Segall on Twitter still showed some disdain for the Court. That overall is not nothing.

David Ricardo said...

Since it only takes four Justices to grant Cert it is a near certainty that the Court will hear the case. And since the CJ voted to uphold the Texas regulations in Whole Women's Health it seems the only question is whether or not the Court will uphold the Louisiana law on the manufactured differences between it and the Texas law that Mr. Dorf references or just overturn WWH.

Shag from Brookline said...

The "threat" of overturning Roe v. Wade via SCOTUS during the 2020 campaigns will play what role in the outcomes of such campaigns, not to mention public confidence in SCOTUS?

egarber said...

A few questions:

1. Does Roberts joining the dissent in Whole Woman's Health make it likely that he'll ultimately support the LA law?

2. In Whole Woman's Health, I think there were two dissents. What was the key distinction between the Alito and Thomas dissenting opinions? I'll read them later on my own, but I figured what better place to ask. :)

3. Does it signal anything that Roberts only signed on to Alito's?

David Ricardo said...

It would seem that the simplest explanation (Occam's Razor) for Roberts current position with respect to the Louisiana law is that he wanted to preserve the Supreme Court's role as the court that overturns Supreme Court rulings and would not allow a lower court to effectively do so if the La law were allowed to go into effect. He in no way was acting on the merits of the case.

Given the CJ's position in WWH the chances that he would not uphold the La law are slim and none, and slim is in the process of putting on his coat and leaving the building.

Joe said...

Whole Woman's Health is now precedent and Roberts has shown some concern about honoring judicial norms in that regard.

But, his dissenting in that case and long term position on abortion rights in general also lead one to think that he would find a way to at best apply the case narrowly. This references the "manufactured" differences cited by David Ricardo. See also, Dahlia Lithwick's Slate piece that suggested the state's late assurances would serve as cover that "this is okay."

This follows the "minimalism" approach of Roberts that in practice has wider actual effects. Still, it is not as extreme as some justices want. So, it matters. As to the differences between Alito and Thomas' dissent, perhaps this will help:

In effect, Alito's dissent seems to be more procedural while Thomas broadly attacked. Alito's dissent has shades of Kavanaugh's dissent last night. But, the net result in practice is often the same.

Michael C. Dorf said...

FWIW, this post is quoted in

Joe said...

The online version links to the blog post.

David Ricardo said...

Kudos to Mr. Dorf, always nice to be quoted in the Times. Now if they will just quote some of the comments on the blog . . . .