John Roberts' Stealth Attack on Abortion Rights Just Paid Off

By Dahlia Lithwick and Mark Joseph Stern, Slate

09 August 20

A federal appeals court will allow Arkansas to create degrading new hurdles for people seeking abortions.

he Supreme Court’s recent decision in June Medical v. Russo was hailed by many liberal court watchers as a win for reproductive rights, as the court declined to overturn Roe v. Wade and formally eliminate the right to an abortion. On Friday, however, a federal appeals court ruled that June Medical significantly narrowed the constitutional right to abortion access. The 8^th U.S. Circuit Court of Appeals panel swept away an injunction that had blocked Arkansas from enforcing a slew of abortion restrictions, including a requirement that patients pregnant as a result of rape notify their rapists before terminating their pregnancy. The appellate court’s decision confirms that Chief Justice John Roberts’ controlling opinion in June Medical will serve as a tool to eviscerate abortion rights. Those who briefly heralded him as a champion of reproductive freedom were too caught up in the halftime show to see the game.

Friday’s ruling in Hopkins v. Jegley greenlights four Arkansas regulations passed in 2017. The first of these laws requires clinics to report the names of abortion patients under 18 to local law enforcement. These clinics must then preserve the fetal tissue and treat it like criminal evidence. The second law forces abortion providers to spend “reasonable time and effort” acquiring a patient’s medical records for her “entire pregnancy history” before performing the abortion. The third law grants equal rights over fetal remains to both partners, with no exception in cases of rape. A patient must notify her partner before the abortion and ask which method of disposal he prefers. If both partners are minors, the patient’s parents get to decide how fetal remains are disposed of. If the patient is a minor but her partner is an adult, then he—not the patient—makes the choice. These rules effectively prohibit medication abortion, which occurs at home, where the provider cannot control the disposal of fetal remains. The fourth and final law bans the safest and most common procedure for second-trimester abortions.

Abortion rights advocates challenged this legislation, arguing that they impose an unconstitutional burden on abortion access. A federal district court agreed in 2017, and blocked the new regulations. In Friday’s decision, three Republican-appointed judges on the 8^th Circuit cleared away that injunction. The lower court had analyzed the laws under Whole Woman’s Health v. Hellerstedt, the 2016 Supreme Court decision that required courts to weigh the medical benefits of an abortion restriction against its burdens. But the Supreme Court’s decision last month in June Medical, the 8^th Circuit wrote, overturned that standard. Under the new test, courts may not ask whether an abortion law provides any benefits to patients. Instead, they must only ask whether the regulation imposes a “substantial obstacle” to an individual’s path to an abortion. Thus, the 8^th Circuit sent the case back down to the trial court for reassessment, allowing the Arkansas laws to take effect in the meantime.

It might be surprising to hear that June Medical curbed the right to abortion. After all, in that case, five justices struck down a Louisiana abortion law identical to the measure invalidated in Whole Woman’s Health. But the court actually split 4–1–4, with Roberts in the middle. The chief justice penned a separate opinion that rejected the balancing of burdens and benefits in favor of the stingier “substantial obstacle” standard. In his view, an abortion restriction can be constitutional even if it provides zero health benefits to women. In effect, the chief justice had reinstated the less robust test from 1992’s Planned Parenthood v. Casey, which had opened the door to all sorts of pretextual TRAP (targeted regulation of abortion providers) laws, that did nothing to advance maternal health, while insisting that they were helping women. Because Roberts provided the fifth vote, the 8^th Circuit panel declared that his opinion is controlling on lower courts. For any judge who chooses to read it that way, going forward Whole Woman’s Health is functionally overruled, and states are free to enact any and all abortion laws, so long as they come with assertions that they protect mothers.

In the hours and days after June Medical came down, Roberts was celebrated for his apparent newfound wokeness. But there were indications that Roberts’ vote did not grow out of some novel devotion to reproductive freedom, but out of a commitment to the legal principle that lower courts cannot reverse the Supreme Court willy-nilly. It hardly required an act of prophesy to read the words Roberts wrote to mean precisely what he said they meant: that he had “joined the dissent in Whole Woman’s Health” and continued to believe “that the case was wrongly decided,” and also that “absent special circumstances the court must … treat like cases alike.” Whole Woman’s Health and June Medical presented identical facts. He struck down the Louisiana admitting privileges law because to do anything else would have been farcical.

The chief justice, who is very, very good at doing consequential things in invisible ways, used his opinion in June Medical as an engraved invitation to states seeking to enact TRAP laws, as long as they didn’t pass something identical to the law struck down in Texas three years earlier. It is an engraved invitation to reviewing courts to ignore the fact that a law that purported to advance women’s health in fact did nothing of the sort. It was on its face an invitation to lower courts to return to the minimal scrutiny of Planned Parenthood v. Casey’s “substantial obstacle” language. And where Whole Woman’s Health had given the judiciary a meaningful role to play in assessing whether an abortion regulation was burdensome, the chief justice made quite plain in June Medical that “state and federal legislatures [have] wide discretion to pass legislation in areas where there is medical and scientific uncertainty.” Courts, post–June Medical, need to stand down and let states do what they will. And that is precisely what the 8^th Circuit did.

Nobody should be surprised that the chief justice’s invitation was accepted with alacrity. His words are being used to do precisely what he intended: reinstate the Casey test, hollow out the stricter rule from Whole Woman’s Health, and permit reviewing courts to rubber-stamp any state regulation that held itself out as advancing women’s health. The real surprise here is that it took just over a month for an appeals court to do what they’d been advised to do. Roberts has facilitated severe restrictions on reproductive rights in a stealth move that avoids headlines accusing his court of overturning Roe v. Wade and tiptoes past the trip-wire alarm that might alert voters to the takeover of the federal courts by anti-choice radicals.

Everyone knows that Roberts is a master of the “long game,” but in this case the long game took four weeks instead of three hours. Casey stands now as a husk of its former self and Whole Woman’s Health is merely a relic. The chief justice was not “evolving” this term. He never moves an inch but allows the spectators to careen right past him whooping and cheering, as the real damage plays out on the ground, long after the crowds have gone home.