Estimated reading time: 6 minutes

One of the challenges of analyzing any jurisprudence by Roberts is that he seems to be inconsistent. Someone will guess his decision based on politics (he’s conservative…right?), and then he’ll flip. People talk about his commitment to the “legitimacy of the court,” and then he upholds a decision which he explicitly believes is wrong.

Roberts could have a grand, overarching plan for guiding jurisprudence over the course of decades, chipping away at old foundations to lay the groundwork for good decisions. But it more frequently feels like his pragmatism causes him to hurt conservative causes at critical junctures.
First, I’ll look at his explicit justification for the decision in Russo as he states it. I’m of the opinion that his surface-level obedience to stare decisis is not the only thing going on in his thinking. Roberts is playing something of a game with the rules of the Supreme Court, and I’ll explain what I think is going on later in this article.

Roberts’ Opinion in Russo

The first thing to note is that Roberts concurs only in the judgment in Russo. This means that, while he agrees with how the case should be decided, he explicitly does not agree with any part of how the rest of the majority decided it. Technically, this means that there is no majority decision in this case; the four more liberal justices wrote the plurality opinion, which became the “decision of the Court” because the most justices signed onto it.

The entire ground for Roberts’ decision is the legal doctrine of stare decisis. At its most basic level, stare decisis is the idea that judgments should be preserved over time. In other words, the Court shouldn’t just overrule precedents (previous decisions) willy-nilly, especially when the facts of the new case are substantially similar with the old case.

Roberts asserts, and there is little reason to disagree, that the facts at issue in Russo are substantially similar to a previous case, Whole Woman’s Health v. Hellerstedt. In Whole Woman’s Health, just like in Russo, the state (Texas) passed a law requiring abortion practitioners to have admitting privileges at a local hospital in case of emergency complications. The Texas law was stricken down by the Court, which ruled that it imposed an undue burden on abortion access.

Here’s the thing: Roberts dissented from the opinion in Whole Woman’s Health! He thought it was a bad decision. What’s more, he hasn’t changed his mind about that ruling in the last six years: “I…continue to believe the case was wrongly decided.” Roberts joined in Justice Alito’s dissent, which held that the case should not have been allowed because Texas’ abortion clinics already challenged the law in court and lost (the principle of res juidicata holds that a claim should only be heard once).

After reiterating his belief that Whole Woman’s Health was wrongly decided, Roberts then states rather flatly that stare decisis must apply to it. Miraculously, the mere passage of time has transformed bad law into good law.

Roberts’ Dictum in Russo

Nothing besides Roberts’ invocation of stare decisis formed the basis of his opinion and it has no precedential value (the jargon for that type of writing in a court ruling is “dicta”, the plural of dictum). But it’s worth looking at because, basically, he put it there for a reason. It shows his thinking and what direction he wants the Court to go in future cases.

Notably, Roberts says that Whole Woman’s Health provides an inaccurate interpretation of the undue burden standard in Planned Parenthood v. Casey. The liberal bloc in Whole Women’s Health required that the burden on abortion access be balanced against the benefits of any law limiting abortion on demand in any way. This, says Roberts, would invite a “grand balancing test” that is impossible and outside the scope of the judiciary. Instead, Roberts argues that Casey and following cases only ask the Court to consider whether a restriction on abortion poses an undue burden on abortion access; if it does, the Court should strike it down under precedent. It seems that Roberts, if deciding Whole Woman’s Health on the merits, would have invalidated the Texas law.

This sounds like Roberts is making it even worse for pro-life laws, since he’s not allowing the Court to see if benefits would outweigh burdens to justify a law in spite of an undue burden. However, he’s actually taking away the implicit requirement that there be a substantial and measurable benefit to regulations on abortion. The Court will give legislatures latitude to pass laws, and only if the laws pose an undue burden to abortion access will the Court strike them down. Worth mentioning: as an abortion activist points out, Roberts didn’t consider a total ban on partial-birth abortion with no health exception to pose an undue burden. If this dictum became precedent, it could take some of the teeth out of Casey.

Said plainly: pro-life laws don’t need to achieve some acceptable benefit more than they burden abortion access. The Court isn’t going to do some kind of cost-benefit analysis about whether the law protects health more than it interferes with abortion access. The law just can’t pose an “undue burden” on abortion access, or it’s gone.

Is Russo a Precedent Now?

Let me preface this last section by saying I wish Roberts made the right call and overturned Whole Woman’s Health. He seems too concerned about procedure, and that seems always to sting conservative causes and cases. However, he gave a small legal gift to pro-lifers even as he single-handedly kept open two abortion facilities in Louisiana.

All this talk about plurality vs. majority and stare decisis matters because each decision, having been made, becomes a precedent. So Russo is now a decision which similar cases must follow, like Whole Woman’s Health before it. But what exactly does that precedent hold?

Not much, as it turns out. One of the rules of stare decisis (derived, of course, from an old decision’s precedent) is that, when there is no majority opinion, the opinion with precedential value is the one with the narrowest interpretation, even if only one justice wrote that opinion.

You might be able to see where this is going. The liberal justices wrote grand, sweeping things about how to justify blatant evil. Roberts wrote that this case was like another case, so it has to be decided the same way. Roberts’ opinion is clearly more narrow.

In fact, his opinion is so narrow as to take away any precedential value from Russo. Essentially, the precedent is this: if you pass a law requiring admitting privileges for abortion practitioners and it results in the closure of a majority of the abortion facilities in the state, that law poses an undue burden. We’d rather be able to pass those laws, but we can figure out something else that won’t pose an undue burden (maybe more frequent health inspections?).

Where does this leave us? Roberts chose playing by the rules over making the right decision, but he seems to have tried to soften the blow. One pro-life restriction on abortion lost, and abortion facilities which should have closed will stay open. But this isn’t the sort of monumental setback that Casey was. There are many avenues still open for good pro-life legislation; and when those are challenged by the powers-that-be, the decision may well be in our favor.

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The post Analyzing Roberts’ Opinion in June Medical Services v. Russo originally appeared at the Equal Rights Institute blog. Subscribe to our email list with the form below and get a FREE gift. Click here to learn more about our pro-life apologetics course, “Equipped for Life: A Fresh Approach to Conversations About Abortion.”

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