Will Roberts and Kavanaugh Stand With the Unborn or the Unjust?
Chief Justice John Roberts and Justice Brett Kavanaugh, both nominated by Republican presidents, have both written absurd opinions on abortion laws.
The case of Dobbs v. Jackson Women's Health, which the Supreme Court will hear this year, could give them an opportunity to redeem themselves.
At issue in this case is a Mississippi law that bans most abortions after a baby's 15th gestational week. The question: Can a state prohibit doctors from killing unborn babies who are not yet old enough to survive outside the womb?
In the 2016 case of Whole Woman's Health v. Hellerstedt, Chief Justice John Roberts joined the minority of justices who opposed the court's decision to knock down less consequential abortion regulations that Texas had enacted. These regulations said that doctors performing abortions must "have active admitting privileges at a hospital" within 30 miles of the facility where they terminated babies and that any such facility must meet the state's "minimum standards ... for ambulatory surgical centers."
With Justice Antonin Scalia having passed away earlier that year, a then-eight-member court ruled 5 to 3 against this Texas law. Justice Stephen Breyer wrote the majority opinion, joined by Justices Ruth Bader Ginsburg, Sonia Sotomayor, Elena Kagan and Anthony Kennedy (for whom future Justice Brett Kavanaugh had once clerked). Justices Clarence Thomas and Samuel Alito both wrote dissents. Roberts and Thomas joined Alito's dissent.
In his majority opinion in Whole Woman's Health, Breyer argued that the Texas regulations violated the "undue burden" test the Supreme Court had laid down in Planned Parenthood v. Casey. "An undue burden exists, and therefore a provision of law is invalid, if its purpose or effect is to place a substantial obstacle in the path of a woman seeking an abortion before the fetus attains viability," the court had said in that 1992 opinion co-authored by Justices Sandra Day O'Connor, Anthony Kennedy and David Souter.
In the 2016 case, Breyer, citing Planned Parenthood v. Casey, said of the two Texas abortion regulations: "Each places a substantial obstacle in the path of women seeking a previability abortion, each constitutes an undue burden on abortion access ... and each violates the Federal Constitution."
In 2020, the court took up the case of June Medical Services v. Russo. It challenged a Louisiana abortion law that -- mirroring the Texas law the court had knocked down in 2016 -- required abortionists to have admitting privileges at a hospital within 30 miles of where they performed abortions.
But the Supreme Court of 2020 was not the Supreme Court of 2016.
President Donald Trump had filled the vacancy created by the death of Justice Antonin Scalia with Neil Gorsuch. When Justice Anthony Kennedy retired, Trump had replaced him with his former clerk, Brett Kavanaugh.