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By Daniel Cotter*
In recent days, Alabama and Missouri have joined some other states in enacting laws that make abortion criminal in almost all instances and at an early point in the pregnancies. Some progressives and others have some hope that Chief Justice Roberts will save Roe v. Wade.Recent judicial biographies tell the story of how the “troika” of Justices Kennedy, O’Connor, and Souter saved Roe in Casey v. Planned Parenthood of Southeastern Pennsylvania. We do not have any of those three justices left on the Court. In their places, we have Justices Alito, Gorsuch, Kavanaugh, and Sotomayor.
Supreme Court experts such as Joan Biskupic believe that Roberts will balance his conservative ideology against his interests in moving the Court incrementally and protecting the Court’s legitimacy. However, we should not hold our breath that Roberts’ interest in avoiding “jolts” will outweigh his views on abortion or his general style.
First, at a minimum, this Court will continue to permit states to impose significant restrictions and obstacles on a woman’s right to obtain an abortion, all under the guise of the restriction not being an “undue burden” on the woman. Many states have only one medical provider, oftentimes hundreds of miles away from the person in need. Other states impose time burdens and counseling, making the procedure effectively inaccessible to anyone of even modest means.
Second, except once on a procedural basis in June Medical Services v. Gee, Roberts has never found any restriction to be problematic. In Junethis term, Roberts joined the liberal justices to prevent a Louisiana law from being enforced while the clinic challengers filed their appeal on the merits. In April, June Medical Services submitted its petition for review.
Joining the liberal justices on the merits, though, would be an astounding turnabout for Roberts. Just three years ago, in Whole Woman’s Health v. Hellerstedt, Roberts dissented in a decision that struck down an identical statute from Texas because it placed an “undue burden” on women seeking abortions.
A close look at Roberts’ legal career confirms his anti-abortion views. During his confirmation hearings, he stated, “There’s nothing in my personal views based on faith or other sources that would prevent me from applying the precedents of the Court faithfully.” Notwithstanding his statements in 2005, his words on Roe and on precedent belie his actions before and since then. During the administrations of Presidents George H.W. Bush and Ronald Reagan, he wrote briefs stating clearly his view that Roe had been wrongly decided and should be overturned. And the Roberts Court has had no qualms overturning longstanding, working precedents this year and every term but his first.
The specific issue of abortion has been no different. With the exception of the Junedecision, he has voted in favor of abortion restrictions since taking a seat on the Supreme Court. In 2007, Roberts voted to uphold a late-term abortion born in Gonzalez v. Carhart. He dissented when the Court struck down a Texas restriction on abortion providers in Hellerstedt. Roberts also voted to overturn a California law regulating anti-abortion crisis pregnancy centers in National Institute of Family and Life Advocates v. Becerra.
Roberts might struggle to balance the long-term prestige of the Court against his conservative ideology, but on abortion, do not expect him to save Roe.
* Daniel Cotter is a lawyer practicing in Chicago. He currently is Co-Chair of the ACS Chicago Lawyer Chapter. He is a frequent writer on the Supreme Court and our judiciary, including on Twitter (@scotusbios), and the author of the recently published book, “The Chief Justices” (Twelve Tables Press).