Monday, June 29, 2020

Breaking: A Supreme Victory...For Now

In a 5-4 decision, US Supreme Court Chief Justice John Roberts pulled...a John Roberts, both saving the country's right to an abortion, while also providing a road map to conservatives on how to end it, as Vox's Ian Millhiser warns. 

The bottom line is that Louisiana's case for state-level TRAP laws restricting four of the state's six abortion service providers out of business was basically identical to that of Texas four years ago, and Roberts had no choice but to honor the previous decision.

Should a future litigant provide a better case by attacking the right to an abortion directly, Roberts all but says he will end abortion in America.

Roberts ultimately concludes that he cannot uphold a law that is nearly word-for-word identical to another law that the Court struck down four years ago. But his opinion is laden with hints that, in a future case, he is likely to vote to restrict — or even eliminate — the constitutional right to an abortion.

Roberts opens his opinion by declaring that he still believes that Whole Woman’s Health was “wrongly decided.” He notes that “neither party has asked us to reassess the constitutional validity of” of the Court’s seminal abortion rights decision in Planned Parenthood v. Casey (1992) — a hint that, if future litigants directly attack Casey, Roberts will welcome such a challenge. And he spends as much of his opinion attacking Breyer’s approach to this case as he does explaining why he reluctantly voted to honor stare decisis.

Whole Woman’s Health, Roberts notes, states that “the rule announced in Casey . . . requires that courts consider the burdens a law imposes on abortion access together with the benefits those laws confer.” But balancing these burdens against these benefits, Roberts suggests, is entirely beyond the capacity of the judiciary.

In this context, courts applying a balancing test would be asked in essence to weigh the State’s interests in “protecting the potentiality of human life” and the health of the woman, on the one hand, against the woman’s liberty interest in defining her “own concept of existence, of meaning, of the universe, and of the mystery of human life” on the other. There is no plausible sense in which anyone, let alone this Court, could objectively assign weight to such imponderable values and no meaningful way to compare them if there were. . . Pretending that we could pull that off would require us to act as legislators, not judges, and would result in nothing other than an “unanalyzed exercise of judicial will” in the guise of a “neutral utilitarian calculus.”

In this sense, Roberts’ opinion hearkens back to Justice Bryon White’s dissenting opinion in Roe v. Wade (1973) itself, which similarly argued that courts are not competent to weight the difficult moral questions presented by the abortion debate. “In a sensitive area such as this, involving as it does issues over which reasonable men may easily and heatedly differ,” White wrote in that dissent, courts should leave the question of abortion rights “with the people and to the political processes the people have devised to govern their affairs.”

So the right to an abortion survives another day, but Roberts’ opinion is less an endorsement of the right than it is a warning that litigants should not overreach. The Chief Justice is unwilling to overrule a very recent precedent simply because one of his colleagues retired. But that does not mean that he will preserve Roe or Casey when a litigant asks him to overrule those decisions outright.

For now, being able to get an abortion in all 50 states remains possible. But Roberts all but says he is ready to overturn Roe v Wade if that question is presented to the court.

Expect that in the next couple of years. And should Donald Trump still be picking justices, forget the entire Civil Rights Era.

It ends.

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