What John Roberts’ role in Texas’ abortion case could signal for the future of Roe

By Joan Biskupic, CNN legal analyst & Supreme Court biographer

Chief Justice John Roberts wrote a razor-sharp opinion Friday emphasizing that Texas’ abortion law defies Supreme Court precedent and should expose the many state officials who play a key role in the “scheme” to federal lawsuit.

But the chief failed to win a crucial fifth vote for that opinion and found himself dissenting, along with three liberal justices, in a case that cuts to the core of reproductive rights and the court’s own authority.

“The clear purpose and actual effect of S.B. 8,” Roberts wrote, referring to the Texas ban on abortions after roughly six weeks of pregnancy, “has been to nullify this Court’s rulings.”

Most significantly for women’s rights, Roberts’ dissent Friday suggests his efforts at some compromise in a separate abortion case of nationwide significance could falter.

That controversial case from Mississippi, argued before the justices on December 1 and unlikely to be resolved until June, could lead to a broadscale reversal of Roe v. Wade, the 1973 landmark decision that gave women a constitutional right to abortion at the early stages of pregnancy.

The entire abortion debate at America’s high court in recent months has revealed a transformation in the majority’s view toward reproductive rights and Roberts’ loosening grip on the bench.

A committed conservative in most areas of the law, Roberts has moderated his views on some social policy dilemmas to try to halt the court’s rightward lunge. Those efforts succeeded in earlier years but since the addition of Justice Amy Coney Barrett, the third appointee of former President Donald Trump, Roberts has found himself increasingly dissenting. And as the nine have fractured, their opinions have grown more acerbic.

Friday’s dispute revolved around a procedure in the Texas law that delegates enforcement of the ban to private citizens and attempts to insulate all state officials from lawsuit.

“Texas has employed an array of stratagems designed to shield its unconstitutional law from judicial review,” Roberts observed, noting that clinics have been deterred from providing abortions because they have so far been unable to obtain any pre-enforcement review of the ban that flouts a landmark decision nearly a half century old.

In 1973, Roe v. Wade said women have a constitutional right, rooted in 14th Amendment privacy protection, to end a pregnancy before a fetus is viable, which is estimated today at about 23 weeks.

The new decision — controlled by the five conservatives to Roberts’ right, including the three Trump appointees — gives abortion providers a limited ability to seek relief in federal court. Clinics said Friday’s mixed judgment was likely to keep them from resuming regular operations for the near future.

Since September 1, when S.B. 8 took effect, Texas women seeking to end a pregnancy, and having the resources, have traveled to neighboring states for care. The ban empowers private citizens to sue anyone who performs an abortion or assists a woman in ending her pregnancy. Any person who wins such a case could obtain at least $10,000 in damages.

The court majority, in an opinion by Justice Neil Gorsuch, said while most state officials remain shielded from clinic lawsuits, certain licensing officials could be sued because they would be specifically responsible for enforcement actions against those who violate S.B. 8.

Roberts, joined by Justices Stephen Breyer, Sonia Sotomayor and Elena Kagan, countered in dissent that many more state officials could be held responsible, from state court clerks to the Texas attorney general himself.

The chief justice has been at odds with the majority from the start. He urged his colleagues to suspend the law while litigation on its merits played out. A 2005 appointee of President George W. Bush, Roberts has in past cases voted for increased regulation of abortion. But he also is an institutionalist who has tried to slow the rightward momentum on the bench.

More broadly, Roberts condemned Texas’ attempt to usurp the high court as it denied its residents the exercise of a constitutional right. And he warned that other states might follow.

Quoting a court precedent from 1809, Roberts wrote, “Indeed, ‘if the legislatures of the several states may, at will, annul the judgments of the courts of the United States, and destroy the rights acquired under those judgment, the constitution itself becomes a solemn mockery.'”

Roberts added, “The nature of the federal right infringed does not matter; it is the role of the Supreme Court in our constitutional system that is at stake.”

In a separate dissent, Sotomayor wrote sharply of the consequences to women in the state, as she has done at every stage of this litigation.

Since the ban took effect, she wrote, “the law has threatened abortion care providers with the prospect of essentially unlimited suits for damages, brought anywhere in Texas by private bounty hunters, for taking any action to assist women in exercising their constitutional right to choose. The chilling effect has been near total … . The Court should have put an end to this madness months ago, before S. B. 8 first went into effect.” She was joined in her dissent only by Breyer and Kagan.

When the court heard oral arguments in the case, it appeared Barrett and Justice Brett Kavanaugh were more suspicious of the Texas law specifically designed to insulate state officials from responsibility for unconstitutional measures.

But both signed onto the court opinion penned by Gorsuch making only a limited group of officials liable, and they wrote no separate statements to explain their views. (Justices Samuel Alito and Clarence Thomas were also in the majority; Thomas, however, would have barred the abortion providers from suing all state officials in their effort to block S.B. 8.)

Whether the chief justice made any headway with either Kavanaugh and Barrett as the Texas case was privately negotiated is not known.

During separate December 1 arguments in the Mississippi abortion case, Roberts signaled that he was trying to persuade at least one justice in that right-wing bloc to join him in a decision that would preserve at least a small part of Roe v. Wade.

Roberts appeared ready to uphold Mississippi’s prohibition on abortion after 15 weeks of pregnancy, which would violate Roe’s fetal viability cutoff, yet still preserve some constitutional right to abortion in earlier weeks.

It seemed a tough sell, though possible, at the time. The five-justice majority’s overall disregard for Roe on Friday suggests such a compromise may be even more elusive than it appeared.

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