Chief Justice John Roberts has made common cause with the Supreme Court’s liberal bloc as late, breaking with his conservative colleagues on cases relating to abortion, the death penalty and President Donald Trump’s revised rules for asylum seekers.
Whether Roberts’s recent maneuvers reflect a substantive change in his approach to cases remains to be seen. In isolation, it’s difficult to know what to make of the chief’s votes.
That he is parting with his conservative legal views seems unlikely. This, after all, is a jurist who voted to uphold the federal Partial-Birth Abortion Ban Act and strike down limits on firearms possession, corporate campaign expenditures and all manner of race-conscious programs. Yet his recent moves are all the more interesting for that very reason.
Roberts has twice sided with the liberal bloc on abortion-related cases. In the first instance, the chief and Justice Brett Kavanaugh voted against review of a lower court decision favoring Planned Parenthood in December 2018. That petition did not directly broach abortion rights.
The case arose when Louisiana and Kansas disqualified Planned Parenthood, the nation’s largest abortion provider, from eligibility for state Medicaid funds. Planned Parenthood sued in turn, claiming the Medicaid law allowed it to circumvent a state administrative proceeding and bring its challenge straight to a federal judge.
The 5th U.S. Circuit Court of Appeals said it could. The high court was asked to decide whether that decision was correct.
The appeal was rejected 6-3, prompting a vigorous dissent from Justice Clarence Thomas, who accused the court of base politicking.
Another abortion dispute followed just weeks later. In that case, several health care providers asked the high court to temporarily block implementation of a Louisiana law called Act 620, which requires that physicians who perform abortions have admitting privileges at a nearby hospital. The providers said Louisiana’s law was almost identical to a Texas measure the Supreme Court struck down in a 2016 decision called Whole Women’s Health v. Hellerstedt.
Though a federal district judge found Act 620 unconstitutional under Whole Women’s Health, the 5th Circuit reversed and allowed the law to take effect. Faced with the law’s imminent implementation, the abortion providers asked the Supreme Court to bar its implementation while litigation continued.
The court granted that request on a 5-4 vote. As in the December case, Roberts sided with the liberal justices to enjoin Act 620 on an interim basis over the dissent of his conservative colleagues.
Abortion advocates say admitting requirements are simply a pretext to reduce access to reproductive care, claiming many providers struggle to comply with those regulations. In Whole Women’s Health, the high court made a similar finding, saying the Texas law burdened abortion access without obvious benefits for patients.
Given Act 620’s general similarity to the Texas law, many saw the Louisiana dispute as an important cue as to how the newly entrenched conservative majority will engage abortion cases. Allowing Act 620 to take effect would have been tantamount to overturning Whole Women’s Health — or severely restricting its value as precedent. On the other hand, barring the law’s application would indicate a more cautious approach to abortion.
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