But Chief Justice Roberts is No Friend to Reproductive Freedom
The United States Supreme Court held the line on access to abortion in its decision in June Medical Services v. Russo. That may not sound like a ringing endorsement, but a win is a win and we should take it. But now, we need to get to work!
At issue in June Medical was a Louisiana law virtually identical to a Texas law the Supreme Court struck down just four years ago in Whole Women’s Health v. Hellerstedt. Both laws required physicians who provide abortion care to have admitting privileges at a hospital within 30 miles of a clinic. The evidence is clear, and the overwhelming consensus within the medical community is, that these laws serve no purpose other than to obstruct access to abortion care. In fact, Texas and Louisiana were clear that that was their objective. That’s why the Supreme Court struck down the admitting privileges requirement four years ago – because it drastically restricted access to care and served no legitimate medical purpose – and that’s what four of the nine justices on the Court concluded yesterday.
The rationale of the four liberal justices would not have carried the day, however, had Chief Justice Roberts not concurred with the majority. But Roberts did so because precedent required that result, not because he agreed with the reasoning of the majority. He does not.
So what. A win is a win, right? Not so fast. While Roberts joined the four liberals in this case, he also provided a road map for states to justify harmful abortion restrictions that he and his conservative colleagues could get behind in the future without creating the appearance that they are upsetting prior precedent.
Specifically, Roberts opens his concurrence with a reminder that under Planned Parenthood v. Casey, medical necessity is not the only justification for abortion restrictions. States can also pass laws aimed at “protecting the potentiality of human life,” and ensuring that pregnant people “know that there are philosophic and social arguments of great weight . . . in favor of continuing the pregnancy to full term.” In other words, laws regulating the medical care for people who have uteruses need not be based in medicine. On the contrary, states can enact laws that serve no purpose other than to lecture pregnant people about the gravity of their decisions (decisions that the conservatives on the Court know nothing about), as long as the laws do not prevent them from ultimately getting care.
And Roberts is the good guy among the conservatives on the Court.
Justice Thomas (and likely the other conservatives, though their opinions are not quite as brazen) would reverse Roe v. Wade altogether, noting, among other things, that a majority of states had laws on the books limiting abortions when the Fourteenth Amendment was enacted. What conservatives on the Court never acknowledge, however, is the extent to which those laws were rooted not in respect for potential life, but the fears of white, Anglo-Saxon protestants that the white race might be overtaken if white women had access abortion and contraception. The religious right so often preaches about morality. Shouldn’t the white supremacist origins of this so-called respect for potential life be a focus of the conversation?
The Takeaway: The law remains the same for now. But we cannot afford to be complacent. If we are ever to move beyond where we are now — which is where we were fifty years ago — we need to change the conversation. Litigation and policy advocacy are important, but they won’t drive the kind of culture shift that we need. That requires movement building. So let's get moving!