It has been a buzzworthy 2019-2020 court session. Chief Justice John Roberts became the deciding vote this week for striking down a Louisiana anti abortion law which closely mirrored a Texas law from 2016. The Texas law had been struck down by a deciding vote from since-retired Anthony Kennedy, who was often the swing justice on social issues like abortion and LGBTQ+ rights. Some suggest Roberts is taking up the mantle as a swing justice, pointing to recent cases regarding the census, gerrymandering, LGBTQ+ rights, and the recent abortion ruling.
I wouldn’t be too quick to cast Roberts as a reliable swing vote. As Chief Justice, his primary initiative is to protect the Court’s supposed independence, not necessarily to follow any sort of consistent legal philosophy. Most of his concurring vote is due to the desire to follow stare decisis (precedent), although he had initially dissented in the reasoning for the Texas case, known as Whole Woman's Health v. Hellerstedt (2016).
I don’t believe it is reasonable to rely simply on judicial principles and procedure to make an argument that conservatives will, going forward, join the liberal justices. In a hypothetical case that liberals disagree with, which has similarities to a case decided by a conservative majority, especially when it comes to the economy or welfare state, Roberts will more than likely follow the conservative precedent. More importantly, he will act as a swing vote for the most controversial cases, hinging on stare decisis and, perhaps, his own definition of textualism or originalism, and default to a more conservative analysis on less controversial cases.
What this means for this week’s case is that relying only on stare decisis may punt the consideration of abortion rights for now, in today’s makeup of the Court, but that does not mean that abortion rights are secure, and I would be personally wary of anyone trying to suggest that this victory has far-reaching implications or that it solidifies abortion as healthcare.
A Vox article suggests that Roberts isn’t the savior of abortion rights with this decision, and that he has in fact given courts an outline via this week’s decision in June Medical Services v. Russo for future litigants to bury them. Such outlines for how the Court may rule given certain conditions are occasionally a feature of concurring opinions, and sometimes dissenting opinions. While anti-abortion activists believed Kavanaugh’s seat on the bench as opposed to Kennedy’s would meaningfully change the legal reasoning from 2016 to now, Roberts took a less controversial position on abortion rights by relying on stare decisis with the knowledge that, in the case of a future conservative justice replacing, say, Justice Ginsburg or Justice Breyer, this reliance on stare decisis might cease.
In addition to this assessment, I find it necessary to point to the recent atmosphere around abortion restrictions during Covid-19 to supplement the argument that women’s reproductive rights are far from secure.
Political and health officials, religious or secular, often try to avoid controversy by applying language applicable to insurance coverage (i.e. elective versus therapeutic procedures) to whether hospitals, rather than clinics, are authorized to perform abortions. In truth, abortions ARE elective procedures, but so are knee surgeries and breast reductions which make life easier for people with physical ailments (bowlegs and large breasts, for example), while they could technically go without them.
Since they are elective, some insurance companies may not provide coverage, but that doesn’t necessarily mean the procedures won’t drastically improve their quality of life. Insurance may decline to cover the procedures, but that does not necessarily mean that healthcare providers authorized to do the procedures should suddenly defer that ability to clinics because of their “elective” rather than “therapeutic” nature. Deferring the procedure of abortion to clinics make them less accessible, especially when so few clinics exist in many states today. Language used for insurance considerations, then, is being unfairly weaponized by health providers to deny legal medical care.
During the coronavirus lockdowns and declared states of emergency, several states, governed by Democrats and Republicans, used the reasoning that abortions are “elective procedures” to restrict access to abortion through the duration of the emergency. Abortions, however, are time-sensitive medical procedures that can’t really be deferred in this manner. But because they are deemed elective procedures by the medical community and government officials, they are authorized to shut down despite any empty affirmations by political leaders that abortion is healthcare.
Although many have now been re-opened as part of states pursuing a phased-in reopening, the fact they could be closed at all shows that our health systems around abortion must be strengthened to prevent abortion access from being so handily rescinded because of pressure on our health system and a state of emergency.
I would be increasingly wary of anyone who argues that this decision is some mighty victory for abortion rights. Chief Justice John Roberts has granted lower courts and state litigants an outline for arguing cases similar to Whole Women’s Health and June Medical Services while states still qualify abortions as elective procedures not only in an economic sense, but also in determining physical access to healthcare. June Medical Services v. Russo is a dubious victory at best.
