Chief Justice John Roberts is under the microscope as the Supreme Court prepares to issue its first major ruling on abortion rights in the Trump era, which will give the clearest indication yet of the court’s willingness to revisit protections that were first granted in Roe v. Wade.
The tie-breaking vote may rest with Roberts, and the case stands to test his role as the court’s new ideological center as well as his allegiance to past rulings.
A decision could come as early as Monday, following a blockbuster week at the court. Roberts joined narrow majorities last week to extend civil rights protections to gay and transgender people and block the Trump administration’s plan to end a deportation shield for young undocumented immigrants under the Deferred Action for Childhood Arrivals (DACA) policy.
But the abortion rights case differs from the others in a key respect. Whereas the LGBT and DACA disputes asked the justices to interpret the meaning of federal law, the Louisiana case asks the justices to weigh their own past rulings on abortion.
Roberts’s image as an “institutionalist” justice dedicated to honoring prior Supreme Court opinions, especially recent ones, is now on the line.
One ruling in particular — the court’s 2016 decision in Whole Woman's Health v. Hellerstedt — looms large over the Louisiana case. It also raises the stakes for the reputations of both Roberts and the court.
The court in Hellerstedt ruled 5-3 to strike down a Texas law that required abortion-performing doctors to be authorized to admit patients at a nearby hospital. Roberts dissented on technical grounds from the majority, which said the Texas law was unconstitutional because its burden on a woman’s right to an abortion outweighed any medical benefit.
While Roberts’s vote was not decisive in the Texas dispute, he may hold the tie-breaking vote in the Louisiana case. What complicates matters is the fact that the Texas law that the court struck down in Hellerstedt is nearly identical to the Louisiana law now under review.
Roberts’s reputation would suffer if the court uses the Louisiana case to overturn its 2016 decision in Hellerstedt, legal analysts say.
“Roberts has as much if not more of an interest than anyone in the public face and integrity of the court,” said Steven Schwinn, a law professor at the University of Illinois at Chicago. “He is acutely aware that if the court were to take dramatic actions in the Louisiana case, like overturning Hellerstedt, it would widely be seen as a sheer political move."
Were the court to reach different rulings on the nearly identical Texas and Louisiana abortion laws, many would attribute the discrepancy to the court's rightward shift in recent years.
Since-retired Justice Anthony Kennedy, formerly the court’s swing vote, joined the court’s four liberals to strike down Texas’s admitting-privilege law in the 2016 decision in Hellerstedt.
But Trump has tilted the court to the right since then, particularly by replacing Kennedy with the more conservative Justice Brett KavanaughBrett Michael KavanaughLocked and Loaded: Supreme Court is ready for a showdown on the Second Amendment Why Latinos need Supreme Court reform Feehery: A Republican Congress is needed to fight left's slide to autocracy MORE. He also added a second conservative, Justice Neil GorsuchNeil GorsuchLocked and Loaded: Supreme Court is ready for a showdown on the Second Amendment Justices weigh request for information on CIA's post-9/11 torture program Supreme Court declines to hear dispute over DC representation in Congress MORE, to the bench.
As a result of changes to the court's ideological makeup, the Louisiana case may be a bellwether for the future of abortion protections in the Trump era. A decision to uphold the Louisiana law could signal the court’s willingness to rein in abortion rights that emerged in the court's landmark 1973 decision in Roe v. Wade.
The Louisiana case stems from a constitutional challenge to a law passed in 2014 by the state's Republican-led legislature that required physicians who perform abortions to hold “active admitting privileges” at a hospital within 30 miles of their facility.
In practice, this meant abortion-performing physicians had to be members of the nearby hospital’s medical staff, have the authority to admit patients there and be able to perform relevant diagnoses and surgery.
A federal district court ruled that Louisiana’s admitting-privilege law was unconstitutional, saying it would “cripple women’s ability to have an abortion in Louisiana.” The court found the law provided “no significant health benefits” while saddling doctors with burdensome requirements that would force the closure of two of the three abortion clinics in the state.
Applying the Supreme Court’s guidance in Hellerstedt, the district court said the law placed an undue burden on the roughly 10,000 women who seek abortions in Louisiana each year.
But the 5th Circuit Court of Appeals reversed that ruling. The appeals court said that under Hellerstedt’s benefits vs. burdens test, the Louisiana law “does not impose a substantial burden on a large fraction of women,” prompting the appeal to the Supreme Court.
During oral arguments in March, Roberts offered no clear signal about whether the Louisiana regulation might face the same fate as the virtually identical Texas law the court struck down four years ago.
But his questions appeared to focus on the extent to which the court is bound to follow the 2016 decision in Hellerstedt or whether it could chart a new course by giving states more leeway to pass a wider variety of abortion restrictions.
“Counsel, do you agree that the inquiry under Hellerstedt is a factual one that has to proceed state by state?” Roberts asked an attorney representing Louisiana abortion clinics and doctors who sued on behalf of their patients. “Could the results be different in different states?”
The case is June Medical Services LLC v. Russo.