June 29, 2020


John Roberts' Opinion Preserving Abortion Rights Is Also a Threat to Abortion Rights: The chief justice begrudgingly upheld precedent while rolling back the constitutional right to choose. (MARK JOSEPH STERN, JUNE 29, 2020, Slate)

In short, Roberts--alone among the conservatives--agreed with the liberals that Louisiana cannot pretend its law creates no real burden for abortion patients in the face of ample evidence that it would shutter clinics.

But the chief justice then whittled down the holding of Whole Woman's Health, replacing its balancing test with a stingier rule that may give states broader leeway to restrict abortion. Roberts expressly disavowed Breyer's test, which weighed a law's benefits to patients against its burdens. "There is no plausible sense in which anyone," he wrote, "let alone this Court, could objectively assign weight to such imponderable values" as "the potentiality of human life" and a woman's "own concept of existence." Rather, he declared, the court must retreat back to Casey's cramped standard, which asks only if an abortion restriction imposes an "undue burden," and does not permit courts to consider the benefits, or lack thereof, in making that determination.

Roberts' revision marks a retreat from Whole Woman's Health, effectively overruling its expansion of Casey and preventing courts from invalidating moderately burdensome abortion limitations. Consider this hypothetical example: A state requires patients to wait one week between requesting an abortion and obtaining one. During that period, she must visit the clinic at least three times to view multiple anti-abortion documentaries, ostensibly to ensure she understands the consequences of her decision.

Under Breyer's balancing test, this law would obviously be unconstitutional: It provides no actual medical benefits to patients while imposing at least some real burdens. But under Roberts' version of the Casey standard, it might be constitutional: Yes, the law would put an obstacle in patients' path to abortion, compelling them to make repeated visits to a clinic that might be hundreds of miles away and spend hours viewing propaganda. But it is, at least in theory, a surmountable obstacle (even though in reality many women would just give up). So Roberts may well find that it is not an undue burden.

In truth, however, it's not even clear that Roberts' loose test will survive for long. The chief justice noted that "I joined the dissent in Whole Woman's Health and continue to believe that the case was wrongly decided." He then pointed out that no party in June Medical "has asked us to reassess the constitutional validity" of Casey. Here, Roberts strongly suggests that he would be open to overruling Casey if a state asked him to. But because Louisiana did not challenge that decision, Roberts felt obliged to stand by it.

Posted by at June 29, 2020 1:22 PM