Does Roberts’ surprise vote mean abortion rights are safe?

The Supreme Court’s decision to strike down a Louisiana law restricting access to abortion provides the strongest indication in years that Roe vs. Wade may survive, and that women will continue to have access to safe, legal abortions. The court, in a 5 to 4 decision, declared unconstitutional a Louisiana statute that required doctors performing abortions to have admitting privileges at a hospital within 30 miles.

By itself, this decision is unremarkable. Four years ago, in 2016, the court declared a nearly identical Texas statute unconstitutional in Whole Women’s Health vs. Hellerstedt. The larger significance of this case is to be found in Chief Justice John Roberts casting the fifth vote to invalidate the law based on the importance of following precedent.

In the last decade, many states have adopted hundreds of laws — often targeting providers and clinics — seeking to restrict abortion. Some, like Alabama’s, would prohibit all abortions. Others, like laws prohibiting abortions after a fetal heartbeat is detected, such as in Iowa and Ohio, would forbid abortions after the sixth week of pregnancy and effectively prohibit most abortions.

The question up to now had been how the court would deal with these laws, and even whether it might overrule Roe vs. Wade, in light of its newest justices. In 1992, when the court reaffirmed Roe vs. Wade in Planned Parenthood vs. Casey, Justice Anthony Kennedy was the fifth vote for the majority to continue constitutional protection for abortion rights. Likewise, in 2016, Kennedy was the fifth vote to strike down the Texas law in Whole Women’s Health v. Hellerstedt. Now Kennedy is gone, replaced by Justices Brett Kavanaugh and Neil Gorsuch.

Based on what he wrote as a judge on the U.S. Court of Appeals for the District of Columbia Circuit, there was little reason to think that Kavanaugh would vote in favor of abortion rights. Nor was there much hope that Gorsuch would do so.

Chief Justice John Roberts didn’t seem like a probable champion of the right to choose, either. He came onto the Supreme Court in 2005 and, until Monday, had not once voted to strike down any restriction on abortion. Prior to Monday’s decision, it had seemed there would be a consistent five votes to limit abortion rights, and even to overrule Roe vs. Wade.

In the Louisiana case decided Monday, there was a strong reason to assume Roberts would vote with conservatives to uphold the law, which would have also signaled that a majority on the court might now be willing to uphold even more severe restrictions on abortion. Roberts had earlier voted to uphold the similar Texas law requiring doctors to have admitting privileges.

But that is not what happened. Justice Stephen Breyer wrote an opinion joined by Justices Ginsburg, Sotomayor and Kagan explaining why the Louisiana law was an unconstitutional undue burden on a woman’s right to abortion. There is no evidence that a requirement for admitting privileges at hospitals in any way protects women’s health. Rarely do women receiving abortions need to be hospitalized. Even if they do, the doctors there will provide treatment. At the same time, such requirements greatly limit access to abortion. Indeed, that is precisely what they are intended to do.

These four justices all were in the majority in striking down the Texas law in Whole Women’s Health, too, and it was expected that they would vote to invalidate the nearly identical Louisiana law. But then Roberts came to the same result as the four liberal justices, using different reasoning. He voted to invalidate the law by saying the court should follow its precedent. He said he dissented in the Whole Women’s Health case, and still thinks it was wrongly decided, but he feels the need to follow precedent. He wrote: “The legal doctrine of stare decisis [respect for precedent] requires us, absent special circumstances, to treat like cases alike. The Louisiana law imposes a burden on access to abortion just as severe as that imposed by the Texas law, for the same reasons. Therefore, Louisiana’s law cannot stand under our precedents.”

Of course, the ruling is important for women in Louisiana in protecting their access to abortion. But even more important, the vote signals a willingness of Roberts to follow precedent in the area of abortion rights. It strongly calls into question his willingness to be the fifth vote to overrule Roe vs. Wade.

Perhaps when the question of overruling Roe is squarely before the court, Roberts will see it differently and not feel the same need to adhere to precedent. And if President Trump gets to replace one of the four liberal justices with a staunch conservative, Roe surely will be overruled. But for today, supporters of women’s reproductive freedom can breathe more easily, as there seem to be five votes for following precedent and protecting the right of women to decide for themselves whether to continue or terminate a pregnancy.

Erwin Chemerinsky is dean of UC Berkeley School of Law and a contributing writer to Opinion.