Friday’s decision in Dobbs v. Jackson Women’s Health Organization, which overturned nearly a half-century of precedent, will be a seminal case in the annals of law and learning. It will be paired with the 1973 Roe v. Wade landmark that had declared a constitutional right to end a pregnancy, just as the 1954 Brown v. Board of Education, which ended the “separate but equal” doctrine and began desegregation of schools, has long been tethered to Plessy v. Ferguson, the 1896 decision that permitted separate but equal accommodations for Black and White people.
Yet where Brown ensured rights, of course, Dobbs eliminated them.
It was a sober, even humble Roberts who wrote — alone — as he separated himself both from the conservatives who dissolved a constitutional guarantee and from the liberal dissenters who expressed sorrow for American women and warned of further erosions on privacy.
The 67-year-old chief justice, who is finishing his 17th session, confessed to a rare lack of confidence.
“Both the Court’s opinion and the dissent display a relentless freedom from doubt on the legal issue that I cannot share,” he wrote. Referring to the disputed Mississippi law at the heart of the Dobbs case, he added, “I am not sure, for example, that a ban on terminating a pregnancy from the moment of conception must be treated the same under the Constitution as a ban after fifteen weeks.”
Roberts, who has forcefully pushed for conservative outcomes on race and religion, had tried to move incrementally here. He attempted to split the difference, to uphold the disputed Mississippi law that prohibits abortion after 15 weeks of pregnancy but to hold off on confronting Roe.
“I would take a more measured course,” he wrote and urging — in vain — some judicial restraint, said, “If it is not necessary to decide more to dispose of a case, then it is necessary not to decide more.”
Yet as much as the reversal of Roe represents a significant defeat for Roberts and is a singular, staggering moment for the country, the chief is down but not out. The 2005 appointee of Republican President George W. Bush still generally resides on the winning side of this ideologically lopsided bench.
Just one day before Dobbs, Roberts was part of the supermajority that struck down a New York handgun law and greatly expanded Second Amendment rights. Earlier last week, he wrote the 6-3 opinion requiring states that subsidize private schools to include religious education, further breaching the separation of church and state.
Roberts has taken the lead against racial remedies, regarding them as both outdated and unconstitutional, and he authored the consequential 2013 Shelby County v. Holder decision curtailing voter protections, particularly in the South and other places with a history of discrimination at the polls.
Still, Friday’s Dobbs decision was monumental and will demarcate the Roberts Court era, even as he was outflanked on abortion-rights precedent by Justice Samuel Alito, who penned the Dobbs decision, and Justices Clarence Thomas, Neil Gorsuch, Brett Kavanaugh and Amy Coney Barrett.
Those last three justices were appointed by former President Donald Trump, and their sheer presence had emboldened Mississippi officials to seek an expansive decision in a case that originally was confined to the validity of the 15-week ban.
The three liberals who fully dissented remarked at the speed with which the relatively new five-justice bloc, secured by the 2020 addition of Barrett, moved to reverse Roe.
In doing so, they wrote, “this Court betrays its guiding principles.” They said they felt sorrow for the court itself although more “for the many millions of American women who have today lost a fundamental constitutional protection.”
The right wing grew weary of waiting for ‘another day’
Roberts’ fate on the losing side of Dobbs was foreshadowed last year when he heatedly dissented as the same five conservatives who controlled in the Mississippi dispute allowed Texas to put into effect a six-week ban on abortion, known as S.B.8.
“The clear purpose and actual effect of S.B. 8 has been to nullify this Court’s rulings,” including Roe v. Wade, Roberts wrote last December as the five justices endorsed the Texas ban that they had first permitted to take effect on September 1.
It was a sign that the tactical and usually persuasive chief justice, who himself has been critical of abortion rights, was outmaneuvered by a fivesome who wanted to go further, faster.
Barrett’s succession of the late liberal Justice Ruth Bader Ginsburg, to be sure, diminished Roberts’ negotiating power. Her appointment transformed what was a 5-4 conservative-liberal court into a 6-3 bench, where Roberts no longer holds the crucial fifth vote for either wing. As the far right showed in Dobbs: it does not need the chief.
Roberts had proposed a limited resolution at oral arguments last December, but he apparently never had any real momentum against the anti-Roe five. There were no signs in the opinions released on Friday that those who joined Alito had wavered in the view that, “Roe was egregiously wrong from the start. Its reasoning was exceptionally weak, and the decision has had damaging consequences.”
Kavanaugh, who has sometimes joined Roberts in compromise, stuck with a line of arguments he had tried out at oral arguments, that reversing Roe puts the court in a “position of neutrality” on the abortion dilemma.
Roberts declined to address that assertion in his concurring opinion, but dissenting Justices Stephen Breyer, Sonia Sotomayor and Elena Kagan wrote that eliminating the right to abortion “is not taking a ‘neutral’ position.”
Roe and the 1992 case that broadly reaffirmed it, Planned Parenthood v. Casey, had prevented states from interfering with a woman’s right to end a pregnancy before a fetus was viable, that is, could live outside the womb. Viability occurs at about 23 weeks.
Roberts sought to “leave for another day whether to reject any right to an abortion at all.”
Alito dismissed that possibility, saying “‘another day’ would not be long in coming. Some states have set deadlines for obtaining an abortion that are shorter than Mississippi’s.”
He said that Roberts’ “quest for a middle way would only put off the day when we would be forced to confront the question we now decide. The turmoil wrought by Roe and Casey would be prolonged. It is far better — for this Court and the country — to face up to the real issue without further delay.”