Chief Justice John Roberts doesn’t agree with overturning abortion rights — but don’t look for his name among the dissenters.
In a mealy-mouthed concurrence, he bemoans that the Court didn’t just nix the viability line, but went all the way on abortion rights. Not because he disagrees with the content of the decision — he calls it “thoughtful and thorough” — but because, he says, demolishing Roe is unnecessary to decide the case centered on a 15-week abortion ban out of Mississippi.
“Here, there is a clear path to deciding this case correctly without overruling Roe all the way down to the studs: recognize that the viability line must be discarded, as the majority rightly does, and leave for another day whether to reject any right to an abortion at all,” he writes.
Roberts’ preference is clear: get rid of the viability line, which he spends many paragraphs attacking. Then, perhaps when a little time has passed, curtail abortion in some other ways.
Abortion rights groups have wondered since the Court became so right-wing whether the justices would overturn abortion rights outright, or do it in 1,000 cuts so as to staunch the backlash. Roberts, the great institutionalist, clearly would have preferred the latter.
Why not slice away at women’s rights just a little bit? he asks.
“The law at issue allows abortions up through fifteen weeks, providing an adequate opportunity to exercise the right Roe protects,” he writes. “By the time a pregnant woman has reached that point, her pregnancy is well into the second trimester. Pregnancy tests are now inexpensive and accurate, and a woman ordinarily discovers she is pregnant by six weeks of gestation.”
He took the same tone during oral arguments, fixating on whether the viability line made sense, while his conservative peers took no pains to hide their intent to nullify abortion rights completely.
It’s another sign of Roberts’ loss of control over the Court. Chief in name, he has little power to rein in the other right-wing judges, who seem unconcerned about the Court’s plummeting legitimacy or the dangers of willfully ripping up precedents.
He spares no words for the plight of women now forced to give birth against their will, or of the dangers to other related constitutional rights. His uneasiness is linked solely to perception of the Court, and the shockwave the decision will send through the legal world.
“The Court’s decision to overrule Roe and Casey is a serious jolt to the legal system—regardless of how you view those cases,” he writes. “A narrower decision rejecting the misguided viability line would be markedly less unsettling, and nothing more is needed to decide this case.”
