In 2016, I posted “Whole Woman’s Health v. Hellerstedt: Finally, Facts Matter,” applauding the U.S. Supreme Court for its decision to strike down a Texas law that required abortion providers to have hospital admitting privileges within 30 miles of their clinic, causing more than half the state’s abortion clinics to shut down.
On June 29, 2020, in June Medical Services v. Russo (June), the court struck down Louisiana’s near-identical attempt to erect barriers to abortion. Surprisingly, Chief Justice John Roberts joined Justices Ginsberg, Breyer, Sotomayor, and Kagan to strike down this law, but Roberts did so mostly on the basis of the Texas case precedent, not on the merits of the case argued in Justice Breyer’s majority opinion.
Roberts wrote a concurring opinion that ended with this paragraph:
“Stare decisis instructs us to treat like cases alike. The result in this case is controlled by our decision four years ago invalidating a nearly identical Texas law. The Louisiana law burdens women seeking previability abortions to the same extent as the Texas law, according to factual findings that are not clearly erroneous. For that reason, I concur in the judgment of the Court that the Louisiana law is unconstitutional.”
Roberts joined the majority not because he’s newly supportive of abortion rights, but because he felt bound by the precedent set in 2016. Attorneys for many other abortion cases wending their ways through district and appellate courts are asking the question: “What does this mean for our cases?” Answer: “You need to structure your arguments to convince the Chief Justice.” Continue reading