The Abortion Decision: What Chief Justice Roberts Would Have Done Differently

From the leak of the decision of Dobbs v. Jackson Women’s Health Organization in early May, it was known that the Supreme Court (assuming that nothing changed) was going to overturn Roe v. Wade and Planned Parenthood v. Casey (1992).  It was also known that Justice Samuel Alito, author of the decision, had Justices Clarence Thomas, Neil Gorsuch, Brett Kavanaugh, and Amy Coney Barrett on board with him.  It was also a safe assumption that Justices Stephen Breyer, Sonia Sotomayor, and Elena Kagan, all Democratic appointees, would be in dissent.  It was not clear, however, where Chief Justice Roberts stood.  Now that the final ruling has been issued, now we know.

The Mississippi law was nowhere near as stringent as laws passed in other states.  The Mississippi law prohibited abortion after 15 weeks.  That’s shorter than the time that the existing precedents of Roe and Casey required states to allow, but it’s over three months, so it’s a point in time when the pregnant woman is going to know she’s pregnant and have time to decide.

Chief Justice Roberts, if he had had his way, would have allowed Mississippi’s law to stand, and in so doing would have ruled that states don’t necessarily have to allow abortion up to the point of viability (the point where the fetus has a chance of surviving outside of the mother’s womb).  He would not have gone any farther than that in the ruling.  He makes that clear in the concurring opinion he wrote (an opinion agreeing with the resolution of the present case but disagreeing with some of the reasoning and, in this instance, with the new precedent that it sets).

He writes:

I would take a more measured course. I agree with the Court that the viability line established by Roe and Casey should be discarded under a straightforward stare decisis analysis. That line never made any sense. Our abortion precedents describe the right at issue as a woman’s right to choose to terminate her pregnancy. That right should therefore extend far enough to ensure a reasonable opportunity to choose, but need not extend any further—certainly not all the way to viability. Mississippi’s law allows a woman three months to obtain an abortion, well beyond the point at which it is considered “late” to discover a pregnancy. . . .

But that is all I would say, out of adherence to a simple yet fundamental principle of judicial restraint: If it is not necessary to decide more to dispose of a case, then it is necessary not to decide more. Perhaps we are not always perfect in following that command, and certainly there are cases that warrant an exception. But this is not one of them. Surely we should adhere closely to principles of judicial restraint here, where the broader path the Court chooses entails repudiating a constitutional right we have not only previously recognized, but also expressly reaffirmed applying the doctrine of stare decisis. The Court’s opinion is thoughtful and thorough, but those virtues cannot compensate for the fact that its dramatic and consequential ruling is unnecessary to decide the case before us.

The Court’s decision certainly has a lot of people upset.  Some question whether it’s going to be a step toward reversing other decisions, like those affirming the right to same-sex marriage and contraceptive use.  Many also believe it will lead to deaths by coat-hanger abortions, as expressed by Representative Alexandria Ocasio-Cortez.  The Democrats are making the most of it in their campaigns for Congress and state legislatures in the November elections.

The ruling about the carrying of concealed handguns, in  case from New York, also has many upset and fearful, especially New Yorkers.  After earlier precedents in 2008 and 2010 established, respectively, that the Second Amendment applies to each individual (not just to state-run militias) and that the Second Amendment can be enforced on the states by the federal courts, the Court ruled that New York’s restrictions on who can get a permit to carry a concealed gun violate the Second Amendment.

Full text of the abortion decision, including the concurring and dissenting opinions  (Justice Roberts’ concurring opinion starts on page 136.)

Full text of the gun decision



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