By Joan Biskupic, CNN legal analyst & Supreme Court biographer
He helped hoist the banner against Roe in the Ronald Reagan and George H.W. Bush administrations. But years later, during 2005 Senate hearings for the chief justice post he now holds, Roberts testified that Roe should be respected as precedent, particularly after being affirmed in 1992. And he has largely held to that.
Now, Roberts, the Supreme Court and the country face a pivotal moment for abortion rights. And Roberts’ action in a dispute the court will take up this week, over Mississippi’s 15-week abortion ban, could be his most consequential. He leads a conservative bench that, since last year’s succession of Amy Coney Barrett for Ruth Bader Ginsburg, has appeared on the precipice of reversing Roe v. Wade.
Dueling parties in the Mississippi case known at Dobbs v. Jackson Women’s Health Organization have laced their briefs with lines from Roberts’ opinions regarding abortion rights and the value of adhering to precedent or, alternatively, discarding it. The chief justice writes with care, never leaving himself in cement, which lets both sides emphasize the words that suit their purpose.
Roberts represents more than one vote among the nine. As chief, he steers the discussion. If he is in the majority, he also assigns the opinion that will speak for the court. Further, Roberts has tried to inspire public confidence in the federal judiciary and repeatedly argued that its opinions reflect justices’ neutral, impartial views rather than any political instincts.
Polls show that public approval of the court has dropped in recent months, notably since September 1 when the majority allowed a Texas ban on abortions after roughly six weeks of pregnancy to take effect even as litigation over the law that plainly conflicts with Roe v. Wade was underway. Roberts broke from his colleagues on the right wing in that case, dissenting as he wrote that the court should at least temporarily suspend the ban while courts assessed the validity of the law. The court heard oral arguments on November 1 and has yet to rule.
Unlike the distinct procedural dispute in the Texas case, the Mississippi abortion controversy goes right to the heart of abortion rights, testing whether women nationwide have a right to end a pregnancy before viability. That is, when a fetus can live outside the womb, at 22-24 weeks.
Both Roe v. Wade, nearly a half century ago, and the decision that affirmed it two decades later, Planned Parenthood v. Casey, declared viability to be the cutoff line for when the pregnant woman’s interest could be eclipsed by protection for the fetus.
“Casey reaffirmed ‘the most central principle of Roe v. Wade,’ ‘a woman’s right to terminate her pregnancy before viability,'” Roberts wrote in a 2020 Louisiana case as he quoted the 1992 decision.
The question now is whether that line will hold.
The Reagan and Bush years
After graduating from Harvard law school and completing a Supreme Court clerkship with then-Associate Justice William Rehnquist, Roberts joined the Reagan administration in 1981.
Reagan had campaigned on a platform against Roe v. Wade and a declaration of “the sanctity of innocent human life.” His administration worked against reproductive rights in its policy agenda and court filings.
Roberts, who was a junior lawyer in the Reagan Justice Department and then White House counsel’s office, assumed more responsibility for the administration’s legal agenda when the first President Bush came to office in 1989. Roberts became deputy US solicitor general, representing the federal government before the high court.
Roberts shepherded the 1991 case of Rust v. Sullivan, as the administration argued it could forbid family planning clinics that received federal funds from providing abortion counseling. The case tested whether that prohibition impinged the free speech of physicians and other health care providers.
“We continue to believe that Roe was wrongly decided and should be overruled,” the Bush administration asserted in the brief signed by Roberts. It contended Roe v. Wade lacked any support in the Constitution’s text or history. The high court had grounded the right to end a pregnancy in the Fourteenth Amendment’s due process guarantee of personal liberty and relied on past cases affirming personal privacy rights.
The Supreme Court ruled narrowly for the Bush administration in Rust v. Sullivan, letting the government forbid abortion-related counseling at federally funded clinics, but forgoing any new review of Roe.
The following year, in the 1992 Planned Parenthood v. Casey case, justices in the majority highlighted at the outset that the Reagan and Bush administrations had argued in a total of six cases over the previous decade for reversal of Roe: “Liberty finds no refuge in a jurisprudence of doubt. Yet 19 years after our holding that the Constitution protects a woman’s right to terminate her pregnancy in its early stages, that definition is still questioned. Joining the respondents as amicus curiae, the United States, as it has done in five other cases in the last decade, again asks us to overrule Roe.”
On the bench
During Senate hearings when President George W. Bush chose him first for a US appellate court and then elevated him to the Supreme Court, Roberts said his arguments on behalf of past administrations reflected his professional advocacy and not necessarily his personal views. He also said Roe was entitled to respect under principles of “stare decisis,” that is, adherence to precedent.
Unlike fellow conservative Justices Clarence Thomas, Samuel Alito and Neil Gorsuch, Roberts has declined to publicly press for reconsideration of Roe in his writings as a justice.
He also has not voted as rigidly against abortion rights as Justice Brett Kavanaugh or been as personally outspoken as Barrett. Before becoming a judge, Barrett, a Notre Dame law professor, was a vocal critic of Roe v. Wade, including signing a statement that denounced Roe’s “barbaric legacy” and called for “the unborn to be protected in law.”
Roberts is a lifelong Catholic whose wife, Jane, provided pro bono legal counsel to anti-abortion nonprofit Feminists for Life. Roberts told senators in 2005 that his faith would not be a factor in his rulings.
Two years after his confirmation, Roberts helped forge a five-justice bloc to rule that the federal government could ban an abortion procedure in which the woman’s cervix is dilated and the fetus is removed intact. Critics called it “partial birth abortion.” The 2007 Supreme Court decision essentially reversed a 2000 ruling that had invalidated a similar prohibition on the procedure under Nebraska law.
The Supreme Court’s next major abortion case came nearly a decade later, in 2016, and Roberts dissented as the majority struck down Texas requirements that physicians who perform abortions obtain “admitting privileges” at a local hospital and clinics convert to costly, hospital-grade facilities.
But in a 2020 dispute over similar physician credentialing requirements in Louisiana, Roberts voted against the law based on that 2016 precedent. Roberts said he still disagreed with the 2016 decision but would follow it as precedent. His rationale and key decisive vote in that case of June Medical Services v. Russo would, however, bolster states’ ability to defend abortion regulations.
The Mississippi case stands to transform reproductive rights. It centers not on a discrete regulation of abortion but a wholesale ban after 15 weeks of pregnancy. The state wants the high court to reverse the holding of Roe that protects a woman’s decision to end a pregnancy before viability.
Mississippi officials assert that “Roe and Casey are indefensible,” and they retrieve lines from Roberts’ opinion in the 2020 Louisiana case suggesting the balancing of government interests and women’s reproductive rights should be left to “legislators, not judges.”
Mississippi’s lawyers highlight Roberts’ vote and concurring opinion in the 2010 case of Citizens United v. Federal Election Commission, when the justices by a 5-4 vote reversed precedent and lifted regulations on corporate independent expenditures in election campaigns.
“Stare decisis’s ‘greatest purpose is to serve a constitutional ideal — the rule of law,'” the Mississippi state lawyers write, adopting Roberts’ phrasing from 2010 and arguing that “adhering to Roe and Casey ‘does more to damage this constitutional ideal than to advance it.'”
A group of constitutional law scholars backing the Jackson Women’s Health Organization counter those arguments with other lines from Roberts’ Citizens Union opinion, noting he wrote that “Fidelity to precedent—the policy of stare decisis—is vital to the proper exercise of the judicial function.” Even as he voted to overturn precedent, Roberts had observed in that case that stare decisis promotes predictable development of the law, fosters reliance on rulings and contributes to perceptions of judicial integrity.
Jackson Women’s Health Organization itself briefly cites Citizen United as it asserts that while some may disagree with past rulings, “it is critical that judicial protection hold firm absent the most dramatic and unexpected changes in law or fact,” so justices not be seen as merely exercising their own preferences.
Other supporters of Jackson Women’s Health Organization, including the Department of Justice, represented by the administration of Joe Biden, revive Roberts’ assertion from the June Medical Services case that “for precedent to mean anything, the doctrine (of stare decisis) must give way only to a rationale that goes beyond whether the case was decided correctly.”
And that is the essence of the Supreme Court’s loyalty to precedent. The principle goes beyond whether a decision can be called “correct” or “incorrect,” to whether it remains so central to the fabric of American law and sufficiently relied on to — in the end — preserve.
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