What a Roberts compromise on abortion might look like

A Conservative veteran of the Supreme Court’s confirmation campaigns, Curt Levey, said he believes the approach of maintaining the ban for 15 weeks and leaving other issues to other cases is entirely in line with Roberts’ stated philosophy.

“If a decision narrowly matters, it does not mean going beyond what you need to decide a case,” said Levey, executive director of the FreedomWorks Foundation. He said he found Roberts’ rationale for maintaining the Affordable Care Act’s individual mandate far more confusing and distorted than the abortion-legal stance he seemed to advocate last December.

“I’m used to Roberts being unprincipled [but] here it was completely plausible, ”Levey added. “I’m not going to lie and say I do not think it would be cleaner to overthrow it, but he certainly did not make me angry.”

Some scholars note that there is a clear precedent for a Supreme Court opinion pretending to preserve the fundamental right to an abortion while allowing further intrusion into that right. That was exactly what happened in 1992, as many expected the passing of Roe. Instead, a highly unusual three-fair common sense in Casey decreased Roe’s trimester-based framework for abortion restrictions, shifted to a standard involving when a fetus was viable and instructed the courts to look at whether borders adopted by states created an “unnecessary burden” for those seeking abortion. None of these three judges – Sandra Day O’Connor, Anthony Kennedy and David Souter – remain in court.

“It dramatically changed the existing legal doctrine without overriding what the controlling opinion called the essential position on Roe v. Wade, ” said law professor Daniel Conkle at Indiana University.Yes, it takes some legal creativity, you might say, but it would not be difficult to imagine Chief Justice Roberts writing a statement of a similar nature. “

Conkle noted, however, that court abortion decisions tend to get extraordinarily intense attention from lawyers, scholars and the public, meaning a mushy opinion is likely to come under rapid attack.

“The evidence lies to some extent in the pudding of whether Roberts writes a statement that can withstand that kind of scrutiny,” the professor added.

Roberts’ comments during the arguments last December were not the only sign that he could be more inclined than his conservative colleagues to return from the brink of overthrow Roe.

Two years ago, Robert took the side of the court’s liberal wing to block a law in Louisiana that could have forced everyone except one of the state’s abortion clinics to close. He said the measure was virtually identical to a Texas law that Supreme Court Liberals and Kennedy voted to block in 2016.

Roberts voted to allow Texas law to come into force, but he said that once the court ruled the measure was too burdensome, the court should not rule the other way in Louisiana just because Kennedy left court and was replaced by Judge Brett Kavanaugh.

A statement that upholds the Mississippi’s 15-week ban but claims to leave Roe in place can also save the court from being in focus for a hot summer with protests over abortion. Keeping the court out of the political spotlight whenever possible has also been another of Roberts’ goals, Cardozo law professor Kate Shaw noted.

“I think from Roberts’ perspective, it would have the advantage of slowly acclimatizing the country to the erosion of abortion rights and could potentially dull the outrage and reaction,” said Shaw, who was associate attorney with Judge John Paul Stevens. “It’s definitely Robert’s playbook. … From Roberts’ perspective, it could be a kind of PR good for the court.”

Shaw, however, believes that Roberts’ efforts may achieve so little delay that he or others may conclude that it is simply not worth it.

“All that would do is postpone the issuance of it Dobbs draft for a year, “she said.” All it would do is slow down the inevitable. “

Of course, the current ideological mathematics of the Supreme Court means that Roberts’ views may end up as little more than a historical footnote, unless he can persuade one of his Republican-appointed colleagues to join him in a arguably more centered approach to abortion. , for as long as it can last.

“It does not seem inconceivable to me that he could convince Kavanaugh to agree with that opinion,” Shaw said.

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