Roberts Joins Liberal Wing in Abortion Case

puts restrictions on abortion doctors. The vote was five to four, the liberal justices in the majority and the conservative justices in the minority, with Chief Justice John Roberts voting with the liberal wing of the court joining me is Neil Kinkoff, a professor at Georgia State University College of Law. Neil tell us a little about the Louisiana law and what

the court did here. Well. The main provision that's an issue is a provision that requires doctors who perform abortions to have admitting privileges at a hospital within thirty miles. The state of Texas adopted the same requirement, and in a case the Supreme Court decided just two years ago, the Supreme Court struck that requirement down because it didn't advance any legitimate purpose. On the state's part and would have the consequence of strictly limiting the availability of abortions

in Texas. So the Louisiana case involves a substantively identical law that would have had the consequence if it applied, of putting all but one doctor out of business, so that the entire state would have been served only by one doctor. And the five justices who voted the way they did yesterday, I saw that as reversing in effect the earlier um the case they decided just two terms ago, and so they put in place an injunction to prevent

the Louisiana law from taking effect. This vote was a bit of a departure for the Chief because in the case you were talking about where the Supreme Court struck down the Texas law and twenty sixteen Robert's dissented in that case. Any inkling as to why the change here, well, I think when the court gets the case on the merits, there won't be a change in his position. What he's doing is, I think, asserting the Supreme Court's exclusive power

to overrule its own precedence. Right. So in this instance what happened is the lower court, the Fifth Circuit Court of Appeals, in essence overruled the Supreme Courts precedent, and Justice robertson part is voting the way he did because he wants to make it clear that that's the Supreme Court's job, not a lower courts job. So you think that it's assumed that the Court will take up this case, So it's a high probability that it will take up

this case. And you feel that he will vote with the Conservatives, then so likely they will reverse their position from I think that's overwhelmingly likely. Yes, when you look at Justice roberts voting record in recent months, though he has started with the liberals several times, hasn't he He's been very careful lately. So yes, what you say is right, and I think this case is a good example of that.

I think Justice Roberts did not want the Court to be viewed as just a political entity, and so that changing Justice Kennedy for Justice Kavanaugh would have an immediate effect of overruling high profile precedents, especially in hot buttonary

is like abortion. So he wants to be much more measured and careful in the way the Court proceeds because he needs to protect the public perception that the Court is being neutral and independent, whereas I think the other conservatives in in his block really are getting impatient and just want to move forward and start overruling a portion precedents. Now there are cases coming up that would bring the abortion issue into more of a focus. Are they likely

to take up those cases? Do they have the four votes there to take them up? I think they clearly have the four votes to take them up. In this case is one that's a good example. So four votes isn't enough to win, but it's enough to get the court to review. And I think when this one comes to the court, the court is going to reverse the

case from two years ago. But I think what that shows is the Court is unlikely to ever actually come out and directly over rule Roe versus Weight itself, because if states can impose these kinds of restrictions on abortion, they can, as a practical matter, make it unavailable and make it effectively illegal, and then the Court doesn't have to take that dramatic step of actually saying that Roe

versus Weight is overruled. And in that way, Justice raw Bert's sort of gets what he wants, which is he preserves the idea that the Court isn't just changing its position because there are new members on the court that it's independent and neutral. And yet as a practical matter, ro versus Wade becomes meaningless except that in certain states, certain Blue states, abortion would be available and it's unlikely

that state legislatures in those states would put restrictions on it. Right, But if roversus Wade were overruled, those Blue states would continue to make abortions legal, right, and overruling Road directly wouldn't wouldn't require states to make abortion illegal. So if Row were overruled, the result would be that in blue states, presumably protections would remain in place, and in red states

abortion would be illegal. Allowing Red states to regulate abortion out of existence without overruling Row comes to the same d Now, let's just go back to this case for a moment. Only the newest Justice, Brett Kavanaugh, published a descent. Why and what did he say? So? His descent is very technical. Um, you read it through. It doesn't say anything about Roe versus Wade. It's very much based on

the his reading of the facts of the case. He says it's possible for Louisiana's law to go into effect in a way that wouldn't be disruptive to abortion providers. You know, that's a that's a very selective reading of the facts. The briefs on the other side, I think demonstrated pretty convincingly that in fact, it would put all of the abortion providers save for one doctor, out of

business right away. Looking forward from Justice Robert's record, can you see what areas he might break with the Conservatives or is that too hard to tell? Yeah, I don't think he's going to break with the Conservatives in any he is. What he might try to do is to

temper what the Conservatives are doing. So the other four Conservatives seem like they want to make a full frontal assault on liberal decisions like Row versus Wade, and I think Justice Roberts wants to get to the same results that they're trying to get to, but to do it in a way that's not so dramatic and confrontational, so that as a practical matter, Row will be meaningless. But we don't have the rather dramatic headlines that say the

Supreme Court has overruled Row. Because if the Court goes down that road, I think they lose the public perception of their independence and justice. Roberts has been very eager to promote and support that. That's Neil Kincoppa, Professor at Georgia State University College of Law. Thanks for listening to the Bloomberg Law Podcast. You can subscribe and listen to the show on Apple podcast, SoundCloud out, and on Bloomberg dot com slash podcast. I'm June Brosso. This is Bloomberg h