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Why pro-lifers angry at Chief Justice Roberts may eventually thank him

While some pro-lifers deplored what Roberts did in the Louisiana case, abortion supporters understood very well what had happened and were quick to voice concern.

(CNS photo/Joshua Roberts, Reuters)

Disappointed pro-lifers were predictably angry at Chief Justice John Roberts for providing the fifth vote in the five-member Supreme Court majority that last month struck down a Louisiana law requiring doctors who do abortions to meet one mildly restrictive prescription. It was no surprise that the court’s four liberals—Justices Ginsburg, Breyer (who wrote the opinion), Sotomayor, and Kagan—voted as they did, but Roberts, a conservative, came as a shock.

Hold on though. Granted, it would have been gratifying if the Chief Justice had supported the Louisiana law instead of citing stare decisis as grounds for voting against. But a sober reading of his opinion as a whole suggests that pro-life critics may have reasons for thanking him in the not too distant future.

With hindsight, it’s unfortunate that the Louisiana case ever reached the Supreme Court. Just four years ago the Court overturned a virtually identical Texas law prescribing that doctor who perform abortions have admitting privileges at a nearby hospital. But note that the Chief Justice specifically refrained from endorsing the substance of the opinion by Breyer, who also authored the majority opinion in the Texas case. Instead, Roberts took a different line that points to the possibility of a different outcome in future cases involving different state laws.

Two such cases from Indiana (both of them presently go by the name Box v. Planned Parenthood) are now in the 7th Circuit U.S. Court of Appeals, which the Supreme Court, two days after its Louisiana decision, told to take a fresh look at the laws involved. One requires that women be offered ultrasounds before abortion, the other that parental consent precede abortions performed on minors.

Here what Roberts said becomes important. He argued for a formula that, subtly but truly, tips the balance more in favor of restrictive state laws than it’s been tipped for years.

Its basic idea is that in considering a statute adopted by a state with the aim of restricting abortion, the court should begin by considering whether a particular law serves a rational state interest—such as protecting unborn human life. If so, the court then should examine whether the law places a “substantial obstacle” in the way of a woman seeking an abortion. If it does, the law would be unconstitutional. But if it doesn’t, the law would stand.

This formula is favored by the four justices—Thomas, Alito, Gorsuch, and Kavanaugh—who wrote dissents in support of Louisiana’s admitting privileges statute. Now add Roberts to that list and you have five—a majority of the Supreme Court as presently constituted. While some pro-lifers deplored what Roberts did in the Louisiana case, abortion supporters understood very well what had happened and were quick to voice concern.

Looking to the future, the possibilities for new state laws are numerous and well worth exploring. Besides the ultrasound and parental consent requirements in the Indiana cases mentioned above, other options include such things as banning sex selection abortions and setting a time in pregnancy beyond which abortions could not be performed except for compelling medical reasons.

It hardly needs saying that measures like these fall far short of unconditional recognition of the unborn child’s right to life. But the happy day when that particular bit of sanity has been restored will require genuine conversion—not just in the Supreme Court but in American society as a whole. Pending that, pro-lifers would be well advised to take advantage of the limited but real opening offered them by John Roberts and his four colleagues.


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About Russell Shaw 211 Articles
Russell Shaw was secretary for public affairs of the National Conference of Catholic Bishops/United States Catholic Conference from 1969 to 1987. He is the author of 20 books, including Nothing to Hide, American Church: The Remarkable Rise, Meteoric Fall, and Uncertain Future of Catholicism in America, and, most recently, Eight Popes and the Crisis of Modernity.

5 Comments

  1. I suppose you could make this argument if it were true that personhood began at birth, and that a beloved son or daughter residing in their mother’s womb was not endowed with their unalienable Right to Life from the moment they were Created and brought into being at their conception. That, of course, would be a lie from the start. The duty rests with the State to demonstrate how it could be possible for a human person to conceive a son or daughter who was not, in essence, a human person.

  2. Legal argument can be exceptionally intricate when two principles are in opposition, such as the right to life and the stare decisis of abortion right. Chief Justice Roberts’ recent legal opinion protecting an abortion right when analyzed by Russell Shaw reveals a plausible legal strategy for future argument to protect a right to life. For example the TX law like the LA law inhibited abortion right but nonetheless failed to add protection for the right of the unborn. Whereas the same argument may be used for the protection of a right to life in opposition to an increased access that doesn’t actually preclude the right to an abortion. And for laws that enhance protection of a right to life but don’t impede, such as the proposed law that require women be offered ultrasounds before abortion. However, the other proposal that parental consent precede abortions performed on minors does infact impede. Nevertheless there is justifiable controversy regarding the omission of parental consent, which was a long standing principle that was abrogated under Obama. It’s due for readjudication. Recently Roberts queried why argument made by attorneys for defending a right to life did not include Roe v Wade, which seems to imply his willingness to adjudicate Roe. If so Roberts would presumably have Thomas Alito Kavanaugh Gorsuch in favor of striking Roe down. Shaw’s “Pro-lifers would be well advised to take advantage of the limited but real opening offered them by John Roberts and his four colleagues” is reasonably hopeful. Although if struck down abortion ‘rights’ will return to state jurisdiction. It will nevertheless take a miracle of cultural conversion to halt the killing of infants in the womb. We hope for that miracle of grace.

  3. It appears that Mr. Shaw would like us to celebrate the prospect that states may be able to put forward protections for human life in the womb as long as these do not prevent a woman from having an abortion. The assumption for this argument seems to be that states should have the right to create nuisance or discouragemnet laws that make abortion more difficult as long as these laws don’t make abortion illigal. This has not worked so far, nor do I think it a promising approach to spreading the truth about the inviolability of life.

  4. At this point, I’d be happy to have the government funding of abortion found unconstitutional. There is no constitutional basis for government funding these atrocities, and we all know that if abortions were not subsidized, then, for obvious reasons there would be a whole lot less of them. I’m not holding by breath, though. With bishops like the ones wi have right now, who needs pro-death justices? What we need to do is pray for better hierarchy and for better laity. All, including you and I have to pray and improve if we are to see abortion overturned.

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