It is good Justice John Roberts did not kill reproductive rights for women yesterday in the case out of Louisiana. Yet, no one should get really happy. Reading his concurrence, Roberts appears to want to make sure the court remains locked squarely into the “undue burden” standard and that any attempt to expand beyond that standard under which abortion cases are decided shall be stopped. Women remain ideological pawns in someone’s odd game of freedom and surveillance; they are not free-thinking humans worthy of respect.
Roberts, it seems, could not in good faith rule that the Louisiana law was valid because just four years ago, the Supreme Court voted to invalidate a similar law out of Texas. He had to invalidate this one as well even though he wrote in dissent last time. Yet, Roberts didn’t want to waste his opportunity so while he joined the liberal bloc in upholding reproductive rights, he wrote separately. That means, only where they agree is actual law that can be considered solid going forward. Here’s a bit of Roberts’ opinion:
In the Louisiana case, Roberts went as far as to reject any balancing test in particular and based his decision solely on stare decisis. This law is the same as the Texas law, and so, by principle, he would follow the precedent from the decision in the Texas case.
So in a small way, he likely has again chipped away at reproductive rights while seeming to be a friend of liberals. He isn’t as he has proved time and time again. Where was Roberts’ so called new found beliefs in the Voting Rights case several years ago? Stare decisis?
It feels like today what Roberts has done is live to fight another day; yet, he still controls the direction of the court. He wants to end abortion rights, it would seem, yet, not like this, and not in this case. When civil rights lawyers were chipping away at racial covenants in housing, it took them years and years, until they found the right case — Shelley v. Kraemer. Roberts, his concurrence suggests, does the same. Did he just come out and say — women have a right to choose, have a right to total dominion over their bodies? No, he didn’t.
It also seemed as if Roberts is giving anti-abortion legal actors direction for the future. He focused on the Casey case in his opinion. That case, more than Roe v. Wade, is and has been the way forward. He seemed to be saying, you can restrict abortion, just not like you tried here. Go back and try again and I got you if you get it right. Here’s another piece of his concurrence as he limits review to Casey:
The other four Republican appointees wanted this case; they know they are beating at the door. After the Texas case, there was really no justification for hearing this one as it is basically the same case. An exercise in judicial masturbation. The hardcore are still after reproductive rights for women and most of all, their right to privacy. They want to gut it all. Roberts still might vote to do that soon. It just wasn’t time yet.