How Not to Outlaw Abortion

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The chief justice of the Supreme Court infuriated conservatives once again Monday by siding with his four more liberal colleagues to strike down a Louisiana law that would have sharply restricted the availability of abortion there by requiring providers of the procedure to have admitting privileges at nearby hospitals.

For abortion foes and no doubt President Trump, the defeat is infuriating. But it’s their own fault. The case, June Medical Services v. Russo, was the wrong one to bring to the Supreme Court. In their impatience to restrict the procedure, abortion opponents miscalculated by asking the court to uphold a law virtually identical to one in Texas that the court had rejected four years ago. And for Chief Justice John Roberts, that was too much.

But that’s not to say the cause is lost for abortion opponents. They need to play the long game. The smartest path for them is to fight for incremental abortion restrictions, like laws approved in red states in the past several weeks outlawing abortion because of the fetus’s race, sex or disability. The movement should focus on later abortions, seeking bans on terminations after 20 weeks, and most common second-trimester procedure, dilation and evacuation.

Why? Because there is no reason to think that Chief Justice Roberts believes the Constitution protects a right to choose. He suggested in his opinion on Monday that the court’s most recent strengthening of the standard that states may not impose an “undue burden” on a women’s ability to obtain an abortion was a mistake. To him, it doesn’t matter if abortion restrictions serve no useful purpose, because nothing in the court’s abortion jurisprudence “suggested that a weighing of costs and benefits of an abortion regulation was a job for the courts.”

Moreover, he wrote, the court’s 2016 decision to strike down the Texas law was “wrongly decided,” But respect for precedent matters to the chief justice, and if the anti-abortion movement wants him to help unravel abortion rights, as his four conservative colleagues seem game to do, it will have to give him a way to do it while upholding the court’s institutional legitimacy.

This clearly wasn’t the case for that.

One might have thought otherwise. The chief justice was among those who voted in the minority to uphold the Texas law, and in his opinion on Monday, he said he continued to believe he was right and the majority was wrong.

But Chief Justice Roberts also cares deeply about the reputation of the court. When the Trump administration did a sloppy job on a citizenship question for the census or in rescinding DACA, he declined to play along, even if he provided the president with a road map to do a better job next time.

The message he sent on Monday was similar: The rules of the reputation game apply to abortion too. As the chief justice put it: “The legal doctrine of stare decisis requires us, absent special circumstances, to treat like cases alike. The Louisiana law imposes a burden on access to abortion just as severe as that imposed by the Texas law, for the same reasons. Therefore Louisiana’s law cannot stand under our precedents.”

If the anti-abortion movement wants the chief justice to help unravel abortion rights, it will have to give the court a way to do it that won’t look as if precedent is being ignored.

But in the age of Trump, conservative commentators and lawmakers expect big results, quickly, and are not afraid to say so — or to give up the claims of neutrality that made the conservative legal movement so successful. In his 2018 confirmation hearings, for example, Brett Kavanaugh told the Senate Judiciary Committee that a good judge “must be an umpire — a neutral and impartial arbiter who favors no litigant or policy.”

That’s not what some conservatives are saying anymore. What do conservatives want instead? Some, like the Harvard Law professor Adrian Vermeule, propose new theories of constitutional interpretation. Professor Vermeule’s alternative, “common good constitutionalism,” proposes that “strong rule in the interest of attaining the common good is entirely legitimate”— and embraces “a candid willingness to ‘legislate morality,’” including in cases of abortion, sexual liberties, free speech and contraception.

Others, like Senator Josh Hawley, a Republican of Missouri, who clerked for Chief Justice Roberts and called the decision a “disaster,” want a new vetting process that would provide more assurance that Republican nominees adhere to the results that the anti-abortion movement demands. At the very least, that would mean laws criminalizing all or most abortions — and judicial nominees who would not hide their support for that outcome.

From a political standpoint, these proposals have obvious drawbacks. They ignore what most Americans seem to believe — a majority want to keep abortion legal — and they reject the idea of popular will as a basis for governing, at least on questions of morality. And in strategic terms, these proposals don’t seem likely to play well with a Supreme Court committed to the appearance of neutrality and respect for precedent.

Losses in the Supreme Court are nothing new. So why are abortion opponents so angry?

President Trump has sold conservatives on the idea that the politically impossible can be easily realized — and that the path to power comes from rallying the base. While lurching from crisis to crisis, Mr. Trump has maintained stable (if low) poll numbers, all while proposing a raft of socially conservative policies. He doesn’t seem to care what the American majority thinks. Some abortion opponents share Mr. Trump’s reckless attitude — and expect the Supreme Court to rubber-stamp absolute abortion bans immediately.

That was never likely. But this Supreme Court still seems quite willing (and even likely) to get rid of abortion rights if approached in the right way. The question is whether abortion foes are up to the task.

What is the best chance for that abortion rights will survive? The chief justice made that clear today: the impatience of conservatives themselves.

Mary Ziegler, a professor at the College of Law at Florida State University, is the author of “Abortion and the Law in America: Roe v. Wade to the Present.

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