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P Lifers, do not worry yet: Chief Justice John Roberts did not necessarily indicate that he was comfortable with the current jurisprudence in choice of the Supreme Court. Instead, he showed that he was unwilling to reverse a precedent with respect to a procedural decision.
Yesterday, the headline writers emphasized Roberts' role in the association of the four liberal court judges by imposing a suspension, or a temporary suspension, of a Louisiana law imposing new regulations on abortion providers. The law would have prohibited doctors from performing abortions unless they hold "admission" privileges in a nearby hospital. As only four abortionists currently practice in Louisiana and only one has such privileges, those who challenge the law have stated that this would impose an "undue burden" on women's ability to have an abortion.
The 5th Circuit Court of Appeal had ruled that the "excessive burden" test, as recently explained in the Texas case of 2016, Whole Women's Health v. Hellerstedt, or WWH, does not apply to the situation in Louisiana. The state argues that access to the hospital is necessary in case of serious medical complications during a surgical procedure and that the three abortionists without admission privileges can now apply and obtain this authorization during a regulatory grace period of 45 days before the law comes into force. In summary, the "burden" is not excessive, but easily surmountable.
Enter Roberts, in the case of Louisiana known as June Medical Services v. Gee . The four liberal court judges were supposed to stay the proceedings because they actually consider any new restriction on abortion as illegitimate. Conservative judges Clarence Thomas and Samuel Alito consistently stated that they felt that the abortion regime as a whole under the cases Roe and Casey was constitutionally suspected, and that Judge Neil Gorsuch should join them. The two unknowns were Roberts and the new judge Brett Kavanaugh.
Roberts had joined Thomas and Alito is a dissident of WWH and therefore rejects such an application of the undue burden test. Nevertheless, Roberts has long been trying to keep the high court safe from new controversial precedents. Any lawsuit that appears to undermine a recent precedent, such as WWH, involving such a controversial subject as abortion, would be considered a major earthquake.
Kavanaugh seemed to offer Roberts some ground for understanding. In disagreement with the stay, he specified that he was not seeking (for the moment) to ignore or overthrow WWH, but to distinguish this Louisiana affair from it. The court need not predict whether the three abortionists could obtain hospital privileges during the 45-day grace period. Instead, he felt that the court should wait – and, if they can not, then issue an injunction terminating the application of the law until the Court Supreme Court can hear the case in its entirety. the merits.
The other three Conservatives also disagree, but without comment, instead of associating with Kavanaugh's reasoning.
That left Roberts. True to his habit, he sided with those who would maintain the law now, clearly recognizing WWH as a precedent rather than trying to distinguish it. Again, if the Supreme Court agrees to hear June Medical Services on the merits, it would be time to return WWH and perhaps even Casey and ] Roe also.
The Plenary Court should agree to hear WWH one way or the other. The only practical difference between Kavanaugh's and Roberts's approaches is therefore to let the law of Louisiana come into force in the meantime.
The reason pro-life should not worry, is that Roberts has not really suggested any indication that his earlier views on the substance have changed. Even a high court that can overturn its own precedent is often reluctant to do so for an interim decision such as an injunction. The Chief Justice, as an institutionalist, is not even one to even seem to undermine a recent judicial precedent without a thorough review of the case.
One might hope that his dislikes in WWH and Casey would make him eager to seize their first opportunity to overthrow them. But that's not Roberts' style. He punishes when he can. Eventually, however, this ball will be put back in his hands and he will then have to run with it, in one direction or in the other.
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