Why did Chief Justice Roberts disagree with overturning Roe v Wade?

Katie Yoder   By Katie Yoder for CNA


John Roberts testifies before the Senate Judiciary Committee during confirmation hearings to be Chief Justice of the US Supreme Court, Sept. 13, 2005. / Rob Crandall/Shutterstock.

Washington D.C., Jun 25, 2022 / 17:04 pm (CNA).

The Supreme Court overturned Roe v. Wade — a case that legalized abortion nationwide in 1973 — in a decision Friday that fell largely along justices’ ideological lines. One justice, Chief Justice John Roberts, strayed from the pack, as he frequently does.

A majority of the nine Supreme Court justices overruled Roe and Planned Parenthood v. Casey, which reaffirmed Roe in 1992, while deciding June 24 the Mississippi abortion case Dobbs v. Jackson Women’s Health Organization.

The court voted 6-3 to uphold a Mississippi law restricting most abortions after 15 weeks. At the same time, justices voted by a narrower margin, 5-4, to overturn Roe.

That’s because of Roberts.

Roberts stands out because justices appointed by Republican presidents — Roberts, Clarence Thomas, Samuel Alito, Neil Gorsuch, Brett Kavanaugh, and Amy Coney Barrett — are generally considered more conservative-leaning. Likewise, Justices Stephen Breyer, Sonia Sotomayor, and Elena Kagan, who were nominated by Democratic presidents, tend to lean liberal.

With the Dobbs case, Alito wrote the opinion of the court — or the opinion that a majority of the justices agreed to or joined. Breyer, Sotomayor, and Kagan dissented from the majority.

Roberts took a unique position: He filed an opinion concurring in the judgement, meaning he agreed with the majority’s ruling, but not necessarily their rationale or reasoning.

Roberts’ reasoning

In his 12-page opinion in the Dobbs case, Roberts said that he agreed with upholding Mississippi’s 15-week abortion ban, but he disagreed that Roe and Casey needed to be overturned in the process.

“The Court’s decision to overrule Roe and Casey is a serious jolt to the legal system—regardless of how you view those cases,” he wrote. “A narrower decision rejecting the misguided viability line would be markedly less unsettling, and nothing more is needed to decide this case.”

As a case, Dobbs centered on the question, “Whether all pre-viability prohibitions on elective abortions are unconstitutional.”

Roberts took the position that this question could be answered without overturning Roe. In Roe, the court ruled that states could not ban abortion before viability, which the court determined to be 24 to 28 weeks into pregnancy. Then, with Casey, the court said that states could not enforce an “undue burden,” defined by the court as “a substantial obstacle in the path of a woman seeking an abortion of a nonviable fetus.”

Roberts said that he agreed with discarding parts of Roe and Casey, particularly the “viability line,” in favor of a new standard.

“That line never made any sense,” Roberts said. Instead, he said, a woman’s “right” to abortion should “extend far enough to ensure a reasonable opportunity to choose.”

In other words, instead of determining abortion based on when an unborn baby can survive outside the womb, Roberts argued that it should be based on whether a woman has enough time to obtain an abortion after realizing that she is pregnant.

“The law at issue allows abortions up through fifteen weeks, providing an adequate opportunity to exercise the right Roe protects,” Roberts wrote, adding at another point that “there is nothing inherent in the right to choose that requires it to extend to viability or any other point, so long as a real choice is provided.”

While doing away with the viability standard, the court could have still recognized a woman’s “right” to abortion with Roe, he claimed.

“My point is that Roe adopted two distinct rules of constitutional law: one, that a woman has the right to choose to terminate a pregnancy; two, that such right may be overridden by the State’s legitimate interests when the fetus is viable outside the womb,” he said.

Roberts described what he called the “clear path” to deciding Dobbs “correctly” without overturning Roe: “recognize that the viability line must be discarded, as the majority rightly does, and leave for another day whether to reject any right to an abortion at all.”

Alito’s majority opinion responded to Roberts’ concurrence, saying it “would do exactly what it criticizes Roe for doing: pulling ‘out of thin air’ a test that ‘[n]o party or amicus asked the Court to adopt’.”

“The concurrence’s most fundamental defect is its failure to offer any principled basis for its approach,” the majority opinion continued. “The concurrence makes no attempt to show that this rule represents a correct interpretation of the Constitution. The concurrence does not claim that the right to a reasonable opportunity to obtain an abortion is ‘deeply rooted in this Nation’s history and tradition’ and ‘implicit in the concept of ordered liberty.’

“Nor does it propound any other the­ory that could show that the Constitution supports its new rule. And if the Constitution protects a woman’s right to obtain an abortion, the opinion does not explain why that right should end after the point at which all ‘reasonable’ women will have decided whether to seek an abortion.”

“The concurrence’s quest for a middle way would only put off the day when we would be forced to confront the question we now decide,” the majority opinion responded. “The turmoil wrought by Roe and Casey would be prolonged. It is far better—for this Court and the country—to face up to the real issue without fur­ther delay.”

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  1. “That line never made any sense. Instead, a woman’s ‘right’ to abortion should
    extend far enough to ensure a reasonable opportunity to choose” (CJ Roberts).
    Faithful Catholics all know the real moral issue is the right to life of the innocent. Although to present a viable legal argument in a Nation that has marked differences on human life, when it begins the better path was Alito’s argument on the absence of Constitutionality on an abortion ‘right’ [notice Roberts punctuates ‘right’ with quotation marks alluding to questioning or disagreement].
    Laurence Tribe legal scholar praised Roberts when he voted with the minority liberals for passage of Obama Care [on the question of Govt funding mandate], that it revealed an unbiased legal mind. Others hold Roberts perceives himself as a juridical equanimity vote in a conservative majority Supreme Court. He seems more interested in the Court’s [and his own legacy] reputation as a justice forum rather than an ideological platform.
    Roberts, if that is his rationale for some past decisions, and for declining to join the majority to strike down Roe appears more concerned with the perception of legal scholars and universities rather than justice [my opinion]. The hard nosed counsel of God to Moses on absolute impartiality in judgments is the better standard.

  2. Justice Alito might have responded, further, to Chief Justice Roberts with the wording that instead of the Dobbs ruling being “a serious jolt to the legal system,” the Roberts’ balancing act would prolong “the legal system as a serious jolt to reality”–the binary (!) fact that it is not possible to be only half-pregnant (or, with Roberts, 15/40ths pregnant).

  3. Roberts loves to play the great mediator. He works for a “win -win” resolution in all of these Supreme Court cases. That way, Roberts comes out the hero.
    However, he hasn’t comprehended the full level of effort and complex strategy required to arrive at the perfect compromise between Heaven and hell.
    To his quandary, however, the true Catholics on the Supreme Court do.

    • Chief Justice Roberts: “recognize that the viability line must be discarded, as the majority rightly does, and leave for another day whether to reject any right to an abortion at all.” That “other day,” after already some 49 years and counting?

      In esoteric legal journals, will legal scholars now parse the dialogue by which Roberts first tried to get some kind of nuanced hesitation built into the majority ruling? Failing that, in his tagged-on opinion, he then appended his view, as remotely possible obiter dictum (?), to still be picked up by a later court with a flipped 5-4 composition.

      A chess game which Justice Alito fully discredits by then adding to the majority ruling that Roberts’ verbiage lacks any demonstrated basis in reason. In addition to discrediting the minority’s dissenting opinion, for future scholars Alito also destroys Roberts’ middle way, adding:“[t]he turmoil wrought by Roe and Casey would be prolonged. It is far better—for this Court and the country—to face up to the real issue without further delay.”

      The foot-dragging Justice Roberts (alongside the Dobbs ruling) and middling Justice Daley (the Dred Scott ruling) have points in common (and, both Catholic).

      Perhaps on Roberts’ “another day,” the “third option” mentality behind gay “marriage” and mandatory LGBTQ signaling and indoctrination in schools will separately and also be overturned, that is, turned upright. (I distinctly recall in the press, but cannot document from filtered files on the internet—prior to the Obergefelle v. Hodges case—the middling controversy that a bi-sexual justice need not recuse himself/herself unless heterosexual justices likewise recuse themselves; Case decided 5-4 with Kennedy writing the majority opinion.)

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