GateHouse: Roberts splits with conservatives on abortion issue

Matthew T. Mangino

GateHouse Media

February 8, 2019

Chief Justice John Roberts recently voted with the Court’s liberal members providing a victory to opponents of a 2014 Louisiana law that required doctors offering abortion services to have hospital privileges within 30 miles of their office.

Those challenging the implementation of the Louisiana law argued that it was identical to a Texas law the Supreme Court struck down in 2016. In that ruling, Justice Anthony Kennedy joined with the liberal block of the Court finding that the Texas law imposed an obstacle on women seeking access to abortion services.

In 2016, Roberts voted with the conservatives in support of the Texas law. Why did Roberts change his position on this hot-button political issue? Some would suggest that he didn’t change his mind, the High Court set a precedent in 2016 and Roberts now supports the Court’s precedent.

However, there may be more to Roberts’ change of heart than just upholding precedent.
Last fall, after California Federal District Court Judge Jon Tigar put a temporary hold on the Trump administration’s plan to no longer consider asylum applications from immigrants who illegally cross the border, President Donald Trump referred to Tigar as an “Obama judge.”

Chief Justice Roberts shot back, “We do not have Obama judges or Trump judges, Bush judges or Clinton judges. What we have is an extraordinary group of dedicated judges doing their level best to do equal right to those appearing before them.”

So what is Roberts trying to accomplish with his rebuke of the president and his unlikely vote on abortion?

According to the Alliance for Justice, it is well known that Roberts cares deeply about his own legacy and about the reputation of the Court as an institution, so he wants to avoid the appearance of partisanship. The Court now has five dyed-in-the-wool conservatives - two appointed by President Trump.

In the last 20 years, conservatives on the Supreme Court have been responsible for a number of decisions that, at a minimum, have the appearance of partisanship starting with Bush v. Gore. In 2010, the High Court turned politics on its head with the Citizens United decision and in 2013 the Court eviscerated the Voting Rights Act.

It is no secret that Roberts is concerned with the appearance of a partisan Supreme Court. In an interview with The Atlantic Roberts said, “Politics are closely divided. The same with the Congress. There ought to be some sense of some stability, if the government is not going to polarize completely. It’s a high priority to keep any kind of partisan divide out of the judiciary as well.”

If the Supreme Court becomes mired in hyper partisanship then the court will be no better than the politicos who inhabit the White House and D’s and R’s that occupy the capital.

What does the Louisiana decision mean for a woman’s right to choose? During the salacious confirmation hearings for the newest member of the Court, Justice Brett Kavanaugh, the alarm sounded that a fifth conservative justice could mean the end of Roe v. Wade.

Women’s rights groups were assured by GOP Senator Susan Collin when she said she was satisfied that Justice Kavanaugh would protect reproductive rights. Well, that hasn’t gone as planned. Not only did Kavanaugh support the immediate implementation of the Louisiana law, he wrote a dissenting opinion.

Chief Justice Roberts intervened and tilted the scales away from implementation. But, what will tomorrow bring? The Louisiana law has never gone into effect. It was blocked by a U.S. District Court Judge. The Fifth Circuit overturned the District Court.

However, the Supreme Court did not overturn the law. The Supreme Court only granted a delay to review the matter.

The Court may still refuse to hear the case and leave the Circuit Court decision in place. According to NPR, that would be a tacit acknowledgment that a majority of the justices no longer support the 2016 decision and may be an easy way out for Roberts.
Matthew T. Mangino is of counsel with Luxenberg, Garbett, Kelly & George P.C. His book The Executioner’s Toll, 2010 was released by McFarland Publishing. You can reach him at www.mattmangino.com and follow him on Twitter @MatthewTMangino.

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