Spotlight returns to Roberts on abortion

Supreme Court Chief Justice John Roberts disappointed conservatives Thursday by siding with the court’s liberal wing to block a Louisiana abortion law that’s almost identical to the Texas one he voted to uphold in 2016.

Roberts has become the fulcrum of the high court since swing voter Justice Anthony Kennedy retired in July, catapulting him into the spotlight as the deciding justice on hot button social issues.

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With Thursday’s decision on the Louisiana law, which requires abortion providers to have admitting privileges at a nearby hospital, Roberts has raised doubts among some conservatives about whether they have a reliable conservative majority after President TrumpDonald John TrumpGillibrand backs federal classification of third gender: report Former Carter pollster, Bannon ally Patrick Caddell dies at 68 Heather Nauert withdraws her name from consideration for UN Ambassador job MORE's successful appointments of Justices Neil Gorsuch and Brett KavanaughBrett Michael KavanaughConstitutional conservatives need to oppose the national emergency Kavanaugh shows his stripes on Supreme Court's 'shadow docket' Ginsburg back at Supreme Court MORE.

“It does give me a little pause,” said Travis Weber, vice president for policy at the Family Research Council, who questioned if Roberts’s vote for staying the abortion law was influenced by the politics of the debate.

“I do think at times the justices and other federal judges will factor that into their decisions and they shouldn’t,” he said. “They should decide the cases according to the law.”

He noted that Roberts also sided with the court’s liberal wing in 2012 to uphold ObamaCare, but overall Weber said he isn’t too worried about the chief justice striking down Louisiana’s Unsafe Abortion Protection Act if the justices take up the case, which seems likely.

“There’s slight concern, but I’m reserving judgment,” he said.

Thursday’s ruling follows the court’s decision in December to pass on hearing two cases brought by states trying to defund Planned Parenthood. Justice Clarence Thomas suggested in a dissent that Kavanaugh and Roberts sided with the court’s liberal justices because they didn’t want to touch the politically complicated issue.

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“Last night’s dissent from Justice Kavanaugh suggests he got that message loud and clear and is willing to stand up and be counted on these cases,” Steven Aden, chief legal officer and general counsel for Americans United for Life, said on Friday. “Kavanaugh was willing to stand up and be counted in a way the chief justice was not.”

Kavanaugh, the court’s newest member, issued a dissenting opinion on his own behalf Thursday, arguing that he would have denied the stay without prejudice because the law has not yet taken effect. He noted there is a 45-day transition period in which physicians can try to obtain admitting privileges. If they fail, he said, a new challenge can be brought.

Roberts and those he sided with offered no explanation for their vote.

“Whether he was not willing to go on the record on this case because he was ducking the issue or simply being diplomatic is an open question,” Aden said.

He acknowledged that Roberts, as chief justice, may have wanted to avoid tipping his hand on how he might rule on the merits of the case in the future.

Roberts was nominated to the court in 2005 by former President George W. Bush to replace the late Chief Justice William Rehnquist. He was confirmed by the Senate in a 77-28 vote, and conservatives had high hopes that Roberts would consistently vote to impose stricter rules on abortion.

Jonathan Saenz, an attorney and president of the anti-abortion group Texas Values, said it’s too early to draw any critical conclusions from Thursday’s ruling about how Roberts might ultimately rule on the case and others related to abortion.

“This is still a preliminary decision,” he said. “There could be a variety of reasons why the chief ruled this way. There’s some suggestion he wants there to be an opportunity for briefing and a full hearing before he makes a decision.”

Saenz argued the law wouldn't have been implemented for at least 45 days even if the stay had been denied.

“One could argue the ruling practically for now is irrelevant,” he said. “I would caution people from jumping to any conclusion in terms of criticisms of the chief justice, but we’ll wait and see.”

Lawyers for liberal groups said Thursday’s ruling was more about procedure than it was about Roberts.

“What we should view this as is the bare minimum of saying lower courts have to follow Supreme Court precedent,” said Sam Berger, vice president for democracy and government reform at the Center for American Progress.

The 5th Circuit Court of Appeals upheld the Louisiana law, despite the Supreme Court’s 2016 ruling in Whole Woman’s Health v. Hellerstedt, in which a short-handed court struck down an identical Texas law with a 5-3 ruling. Roberts was in the minority then.

Jennifer Dalven, director of the Reproductive Freedom Project at the American Civil Liberties Union Foundation, said it would be a tremendous mark against the Supreme Court if it were to overturn a major constitutional ruling from three years earlier just because there are new justices on the bench.

“That’s not how our court system and constitutional laws are supposed to work,” she said.

The Louisiana case isn’t the only abortion case before the court. Dalven said justices have three petitions for review pending — one challenging restrictions on abortion in Alabama and two challenging restrictions on abortion in Indiana.

Gregory Lipper, a partner at the law firm Clinton & Peed in D.C., said Roberts on Thursday was merely protecting the court’s institutional legitimacy by blocking what he characterized as a flagrant violation of a Supreme Court precedent.

“I would not read the stay any further,” Lipper said. “I don’t think this means John Roberts is evolving on abortion rights.”

He added that “there’s a good chance” the court will “overrule the Whole Woman’s Health decision and uphold the law” if it takes up the case.