How Chief Justice Roberts Solved His Abortion Dilemma 1

Here’s a thought experiment. You’re John Roberts, not only the chief justice of the United States but the head of the entire federal judicial branch. After 15 years on the job, you find yourself in an exquisitely tough spot.

On the one hand, you’re confronted with a rogue court — the United States Court of Appeals for the Fifth Circuit, one of the 13 appeals courts that, like all “lower” federal courts, are bound to follow the law as the Supreme Court hands it to them. Four years earlier, your court reversed the Fifth Circuit and ruled that a Texas law imposed an unconstitutional “undue burden” on women’s access to abortion.

And what did the Fifth Circuit turn around and do? It upheld an identical law in Louisiana on the ground that, well, Texas was Texas and Louisiana wasn’t. Clearly, you can’t ignore such blatant defiance.

On the other hand, you dissented four years ago from that decision, Whole Woman’s Health v. Hellerstedt. You didn’t like it then and you don’t like it now. You found it unduly solicitous of the right to abortion as the Supreme Court had narrowed and reinterpreted that right nearly a generation after Roe v. Wade, in Planned Parenthood v. Casey in 1992. Justice Stephen Breyer wrote the majority opinion that struck down the Texas law and now he’s used the same analytical tools to declare the Louisiana law unconstitutional. If you join his opinion, you’ll be perpetuating what you regard as a serious error of constitutional interpretation. But you can’t join the four colleagues who are voting in dissent without rewarding the Fifth Circuit’s defiance.

What to do?

We found out on Monday how Chief Justice Roberts resolved his dilemma: He provided a fifth vote to strike down the Louisiana law without signing Justice Breyer’s opinion, instead offering his own interpretation of the Supreme Court’s abortion jurisprudence. The juggernaut of state-imposed obstacles to abortion came to a halt. This was a particularly cynical one. Requiring doctors who perform abortions to have unnecessary and unattainable hospital admitting privileges would have left Louisiana with but a single abortion clinic.

I was among those who breathed a deep sigh of relief, even knowing that the reprieve is bound to be temporary. Defeat in the courts energizes rather than deters the anti-abortion movement, and every red-state legislative session launches a batch of new TRAP laws (short for “targeted regulation of abortion providers”) that end up on their way to the Supreme Court. My relief was not only for the women of Louisiana, which has one of the highest maternal mortality rates in the country and where regard for fetuses apparently outstrips concern for the welfare of pregnant women and new mothers. And it was not only for the preservation, of whatever duration, of the constitutional right to abortion. My relief was also relief for the Supreme Court itself, for having avoided plunging along with Justices Clarence Thomas, Samuel Alito, Neil Gorsuch and Brett Kavanaugh into an institutional abyss.

So, yes, the court and the country owe Chief Justice Roberts a lot. One thing we owe him, it seems to me, is to take as seriously as he certainly did the subtle moves he made in Monday’s case, June Medical Services v. Russo. My purpose in this column is to unpack his separate opinion, put it side by side with the Breyer opinion that he declined to sign, and consider the implications of the difference between the two.

To do that requires an excursion into abortion case law, the law established by the court’s decisions.

The Casey decision, modifying Roe’s stricter protection for the abortion right, held that states may act to protect unborn life throughout pregnancy. But the decision contained an important proviso: States could impose requirements like waiting periods and mandatory counseling, intended to persuade a woman to carry her pregnancy to term, but at the end of the day, the woman had to be free to choose abortion. Dissuade but not prevent was the rule that emerged from Casey. A regulation that imposed an “undue burden” on a woman’s ability to exercise her right to choose would be unconstitutional. The court defined undue burden as “a regulation that has the purpose or effect of placing a substantial obstacle in the path of a woman seeking an abortion of a nonviable fetus.”

Anti-abortion forces, sorely disappointed at losing what had seemed like a clear shot at ending the right to abortion in its entirety, soon turned to a new strategy. If laws explicitly aimed at preserving unborn life could not actually stop abortions, perhaps laws enacted in the name of protecting women’s health could accomplish that result by limiting the ability of abortion clinics to remain in business. In other words, stop abortion by destroying the abortion infrastructure. The admitting-privileges laws were a prime example of this strategy. Half the abortion clinics in Texas were forced to close before the Supreme Court struck down the state’s law, and many of those clinics have never reopened.

Like fetal-protective laws, the purported health regulations are also subject to the Casey decision’s undue-burden analysis. When a state claims it is acting to protect women’s health, how is a court to tell whether the burden imposed on providers is undue? Casey suggested the beginning of an answer. “Unnecessary health regulations that have the purpose or effect of presenting a substantial obstacle to a woman seeking an abortion impose an undue burden on the right,” the court said then.

How is a court to tell whether a health regulation is unnecessary? An admitting-privilege requirement sounds, without further inquiry, completely unexceptional, well within a state’s authority to regulate the practice of medicine. The Fifth Circuit, in upholding the Texas law, took the state’s explanation at face value, declaring that any judicial inquiry into whether evidence actually supported the need for this or any other health-justified requirement was inappropriate.

Justice Breyer disagreed. In Whole Woman’s Health, his 2016 opinion overturning the Fifth Circuit, he said that when a state offers a health justification for an abortion regulation that limits access, courts must scrutinize with care the evidence underlying the state’s claim, balancing the benefits to be derived from the regulation against the burdens it imposed. In the Texas case, the answer was clear, based on evidence and expert testimony compiled in the District Court: admitting privileges conferred no safety benefit, while the impact on women’s access to abortion was severe. The burden, consequently, was undue.

So, too, in this week’s Louisiana case. Justice Breyer’s 40-page opinion was largely devoted to recounting the evidence that had led Judge John deGravelles of Federal District Court in Baton Rouge to conclude, after a six-day trial, that Louisiana’s law imposed an undue burden. In overturning that District Court decision, the Fifth Circuit ignored much of the evidence and substituted its own view for the rest. But to Justice Breyer, the evidence was “even stronger and more detailed” than in the Texas case. He emphasized both the heavy burden — beginning with the prolonged and fruitless efforts of clinic doctors to obtain admitting privileges from hospitals that clearly would never grant them — and the nonexistent benefit, quoting Judge deGravelles’s finding that there was “no significant health-related problem that the new law helped to cure.” The burden, in Louisiana as in Texas, was undue.

Justice Breyer’s opinion was joined by Justices Ruth Bader Ginsburg, Sonia Sotomayor, and Elena Kagan. Where Chief Justice Roberts parted company with these four was his rejection of the comparative weighing of burdens and benefits that Justice Breyer employed. “Nothing about Casey suggested that a weighing of costs and benefits of an abortion regulation was a job for the courts,” he wrote. His tone was scathing: “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. Attempting to do so would be like judging whether a particular line is longer than a particular rock is heavy.”

I’m baffled by this objection. Properly understood, there is nothing “imponderable” about the test Justice Breyer used to evaluate whether a regulation claimed by the state to have the purpose of protecting women’s health actually had anything to do with women’s health. And far from discussing imponderable “values,” Justice Breyer’s opinion was, if anything, nearly value-free. It could more fairly be described as a dry exercise in rationality, approaching the abortion question more as an exercise in administrative law, which he taught for many years at Harvard Law School, than as a question of protecting the dignity and autonomy of women facing the life-altering choice of whether to become mothers.

Chief Justice Roberts agreed that the admitting-privileges requirement placed a “substantial obstacle” in the path of women seeking an abortion in Louisiana. That should have ended the analysis, he insisted, without further inquiry into whether the regulation conferred any benefit. “Casey’s requirement of finding a substantial obstacle before invalidating an abortion regulation is therefore a sufficient basis for this decision, as it was in Whole Woman’s Health.” he said. “In neither case, nor in Casey itself, was there call for consideration of a regulation’s benefits, and nothing in Casey commands such consideration.”

The reference to Casey is also baffling. Casey concerned not health regulations but regulations designed to persuade women not to go ahead with a planned abortion: a waiting period and a counseling requirement, both of which the court upheld, and a requirement for a married woman to inform her husband, which the court struck down as an undue burden. For a court to assign weight to the supposed benefits from regulations of this type could indeed seem gratuitous and outside the judicial function. But for a court to inquire whether a claimed health benefit actually delivers a benefit or whether it’s just a cover for shutting down access to abortion would seem to be essential.

So where does this leave us? Justice Kavanaugh was not wrong to point out in his dissenting opinion on Monday that there are no longer five votes for the weighing of benefits and burdens that the court established in Whole Woman’s Health (and Justice Kavanaugh should know, since he replaced Justice Anthony Kennedy, one of the five justices in the Whole Woman’s Health majority.) To that extent, Chief Justice Roberts has undermined the very precedent he relied on to strike down the Louisiana law. He’s a very smart man, and he must see the oddness in that. To return to our thought experiment: You’re Chief Justice Roberts. Why? What’s your objection to the requirement to weigh a regulation’s benefits in the undue-burden balance?

I don’t want to be unfair, but the reason that comes to mind is that the chief justice means to leave the door open to abortion regulations that confer no medical benefit while imposing obstacles less drastic — perhaps less “substantial” — than ridding a state of all but one abortion clinic. For example, as the use of telemedicine began to spread, even before the coronavirus pandemic, some states prohibited doctors and clinics from using telemedicine to dispense the pills that bring about an early medical abortion. In weighing the constitutionality of this TRAP law variant, it makes a difference whether the lack of any real medical rationale figures into the undue burden equation. Is it an undue burden? How can a court tell if it can’t consider evidence on whether the requirements lead to better patient care?

The chief justice did his own balancing, of course, in confronting the dilemma that the recalcitrant Fifth Circuit handed him. He balanced what he had to do in his institutional role with what we might assume he would want to do in the absence of institutional constraints. Would he overturn Roe v. Wade and Casey? Almost certainly. Will that day come? It hasn’t yet.

In these days when we all crave some rare good news, I want to end on a more upbeat note. When the long-awaited June Medical decision showed up on my computer screen on Monday morning and I saw the bottom line, the Supreme Court’s amazing past two weeks flashed into my mind, the cases colliding with one another: expanding the rights of L.G.B.T.Q. people against discrimination, protecting the Dreamers from deportation, and now, in this particular context at least, protecting the right to abortion. It’s only a moment, for sure, but the Roberts court, against all expectations, has made this battered country a better, safer place. For now.

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