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Roberts Holds Key to Whether Recent Anti-Abortion Laws Lead to Roe Review

May 17, 2019 by Dan McCue

For several weeks, a growing number of states in the Midwest and South have passed laws sharply limiting women’s access to abortions in a heavy-handed bid to force the U.S. Supreme Court to reconsider its 1973 ruling in Roe v. Wade.

To Chief Justice John Roberts and the associate justices it must seem as if the sky suddenly opened and it’s raining bricks.

On Thursday, the justices met in conference to discuss, among other things, when and if they’ll take on Indiana’s appeal of rulings blocking Its ban on certain abortions. It was at about the same time that Missouri’s Republican-led Senate passed a bill banning abortions after eight weeks of pregnancy.

Missouri’s anti-abortion bill does include exceptions for medical emergencies but not for pregnancies caused by rape or incest. Doctors would face five to 15 years in prison for violating the eight-week cutoff. Women who receive abortions wouldn’t be prosecuted.

The House was scheduled to take the bill up on Friday.

The senate vote in Missouri came just a day after Alabama’s Republican governor, Kay Ivey, signed the most stringent abortion legislation in the nation into law, making performing an abortion a felony in nearly all cases, punishable by up to life in prison, and with no exceptions for rape and incest.

The Alabama law shocked many outside of the state, including the televangelist Pat Robertson, who called it a mistake.

“I think Alabama has gone too far,” Robertson said on his talk show “The 700 Club” on Wednesday, before Ivey had signed the bill. “It’s an extreme law.

“They want to challenge Roe v. Wade, but my humble view is that this is not the case that we want to bring to the Supreme Court, because I think this will lose,” Robertson said.

Four others states — Mississippi, Ohio, Kentucky, and most recently Georgia, have approved bans on abortion once a fetal heartbeat is detected, which can occur as early as the sixth week of pregnancy, before many women realize they are pregnant.

Anti-Roe Faction Sees Window for Repeal

As Robertson suggested, the reason for this rash of lawmaking is the hope among Republicans that President Donald Trump’s recent appointees to the Supreme Court will reverse Roe v. Wade and criminalize abortion nationwide.

But legal experts watching what’s transpired in these states say it’s the chief justice of the United States who holds the key to what happens next, and based on his history, at least, it’s unlikely a total reversal of Roe v. Wade will happen anytime soon.

“What we’re seeing now is historically red states, like Alabama, and normally red states, like Georgia, acting on the belief that the balance of the Supreme Court has shifted enough that it may be willing to reconsider Roe,” said Mark Caleb Smith, an associate professor of political science at Cedarville University in Ohio.

“That’s a change. In the past, as a matter of tactics, these same lawmakers probably would have refrained from taking such provocative steps, because they’d expect them to automatically be struck down at the federal court or Supreme Court level, and it just wouldn’t be worth it,” he said.

“The thinking in years past was that you’d just be piling precedents on top of Roe, all of them clearly being affirmations, which would only serve to strengthen the ruling you were trying to reverse,” Smith continued. “Now, frankly, I don’t think the court is as ready to tackle Roe as these state lawmakers appear to think it is … but the political landscape right now is really being shaped, pretty dramatically, by the hope of what the Supreme Court might do.”

Smith said by his count, there are currently “three pretty probable votes” to overturn Roe. These are Justices Samuel Alito Jr., Neil Gorsuch and Clarence Thomas.

And he said there are “four pretty probable votes” to uphold Roe “and all of its progeny”: Justices Ruth Bader Ginsburg, Sonia Sotomayor, Elena Kagan, and Stephen Breyer.

“Then I think you have two who are a little bit of an unknown,” he said. “Chief Justice Roberts and Justice Brett Kavanaugh.”

Of course, with 14 years on the high court, Roberts has created a paper trail of written opinions, but what they show is that he has typically resisted moving quickly to decide major controversies or to announce abrupt, far-reaching changes in the law.

Roberts’ history, along with the court’s handling of abortion cases in recent years, suggests he will not move to overturn the right to abortion soon, or all at once, and is particularly unlikely to do so in the next year or two with a presidential election pending.

The Indiana law the justices are believed to have discussed Thursday is a case in point. They’ve now debated the merits of taking on or not taking on the case 14 times, each time deciding to kick the can down the road a little farther.

Though Roberts has over the years appeared to move to the right on a number of issues, he’s also proven to be an incrementalist, preferring a methodical, step-by-step approach to change.

A case in point was his handling of an abortion case that actually did make it onto the court’s docket this year, June Medical Services vs. Gee.

In that case, Roberts sided with the court’s four liberal justices and decided to keep the case, which involved a Louisiana law that strictly regulates abortion clinics, on hold until the fall.

Though the case is unlikely to result in overturning of Roe, as it involves only the question of whether the state may enforce a rule that requires doctors to have admitting privileges at a nearby hospital, it could be a step in that direction.

Roberts Rulings Show Concern Over Chaos

Smith said as a result of his approach, Roberts has “staked out some pretty interesting territory over the last decade when it comes to the court’s legacy.”

“Look at the court’s decision upholding the Affordable Care Act,” he said, referring to National Federation of Independent Business v. Sebelius.

In that case, the constitutionality of the Act’s “individual mandate,” a requirement for most Americans to have health insurance by 2014, was called into question.

Roberts, writing for the majority, upheld the mandate to buy health insurance as a constitutional exercise of Congress’s taxing power.

“Roberts bent over backwards to call that a tax … in an effort to detach the court from a rancorous political decision that would have really thrown  the political system into chaos if the court had handled it any other way.  I think the same kind of thing could happen with Roe.”

In Smith’s view, as chief justice, Roberts “feels a unique burden to maintain the court’s detachment and objectivity.

“Now, a lot of critics of Roe argue that the court’s decision in 1973 was political and not judicial, and they would be calling on Roberts to correct what they see as their error,” he said. “However, I think Roberts is also mindful of the cultural context in which decisions are made, and I think he’s inclined to try to prevent the kind of cultural upheaval that occurred when, say, the court handed down its decision in Brown V. Board of Education or even Roe v. Wade.”

Martha Ginn, an associate professor of political science at Augusta University in Augusta, Georgia, also points to Roberts as the key figure in the future of Roe v. Wade, and like Smith, believes in the end he’ll act out of a concern for “the reputation and legitimacy of the court.”

“As a result, I think he’ll be at least hesitant to uphold these laws and overturn Roe in the process,” she said. “At the same time, it was only two years ago, in Whole Woman’s Health v. Hellerstedt that the court struck down a Texas law requiring doctors who perform abortions to have admitting privileges at local hospitals.

“My guess is that once challenges to these laws make their way to the Supreme Court, Chief Justice Roberts will join with the liberal justices and say this is a right that women have and these laws put an undue burden or a substantial burden on a woman’s right to choose.”

But Ginn also believes a reckoning on these questions could be a long way off.

“This is certainly going to become quite the election issue among the candidates, and I think the chief justice is going to do everything he can to try and side step it until the election, if he can,” she said.

Smith was a little more cautious in his prediction of when a Roe determinant case might be heard. It might simply prove impossible to hold out until after November 2020.

If that is the case, “you would hope the court wouldn’t be concerned about what’s unfolding in terms of the election.

“The court was really designed to be detached from politics and to be insulated from the short-term political pressures of campaigns and elections. That said, we all know that Supreme Court justices don’t live in a vacuum, right?

“However, I honestly think most members of the court would not factor in the politics of the presidential election when making a decision on an issue like the future of Roe,” Smith said. “Campaigns may use the court and a pending decision as a political issue, but I doubt you’ll see the influence the other way around.”

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