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| Will the Supreme Court Overturn Roe v. Wade After All? | |
| (about 4 hours later) | |
| When the Supreme Court declined on Monday to hear cases brought by Louisiana and Kansas attempting to exclude Planned Parenthood and other abortion providers from their Medicaid programs, legal soothsayers were out in full force opining about what it means for the future of abortion rights under the newly constituted court. | When the Supreme Court declined on Monday to hear cases brought by Louisiana and Kansas attempting to exclude Planned Parenthood and other abortion providers from their Medicaid programs, legal soothsayers were out in full force opining about what it means for the future of abortion rights under the newly constituted court. |
| The decision drew a dissent from three conservative justices, Clarence Thomas, Neil Gorsuch and Samuel Alito, who suggested that the court was ducking the cases because they involved Planned Parenthood and touched on abortion. But, intriguingly, the court’s two other conservatives, Chief Justice John Roberts Jr. and the court’s latest member, Brett Kavanaugh, sided with the court’s liberals in rejecting the case. | The decision drew a dissent from three conservative justices, Clarence Thomas, Neil Gorsuch and Samuel Alito, who suggested that the court was ducking the cases because they involved Planned Parenthood and touched on abortion. But, intriguingly, the court’s two other conservatives, Chief Justice John Roberts Jr. and the court’s latest member, Brett Kavanaugh, sided with the court’s liberals in rejecting the case. |
| What are we to make of it? | What are we to make of it? |
| It’s not easy to read the tea leaves here because the cases didn’t pose a direct challenge to the constitutionality of abortion restrictions. Instead, they centered on whether those states could exclude Planned Parenthood from providing contraception and other health services in the Medicaid program. Those states object to Planned Parenthood providing access to abortion outside Medicaid, which does not cover the procedure. Had the court accepted the states’ arguments, tens of thousands of indigent women could have lost the health care they receive from the group. | It’s not easy to read the tea leaves here because the cases didn’t pose a direct challenge to the constitutionality of abortion restrictions. Instead, they centered on whether those states could exclude Planned Parenthood from providing contraception and other health services in the Medicaid program. Those states object to Planned Parenthood providing access to abortion outside Medicaid, which does not cover the procedure. Had the court accepted the states’ arguments, tens of thousands of indigent women could have lost the health care they receive from the group. |
| In that sense, supporters of access to reproductive health care were right to be relieved on Monday. But there is still substantial reason to be concerned that when the court does take up a case on abortion, it will seek to undermine the right to one. | In that sense, supporters of access to reproductive health care were right to be relieved on Monday. But there is still substantial reason to be concerned that when the court does take up a case on abortion, it will seek to undermine the right to one. |
| Here’s what we know. Chief Justice Roberts was in dissent in the court’s decision two years ago in Whole Women’s Health v. Hellerstedt, in which the court struck down restrictions that served no legitimate health interest and would have shuttered 75 percent of the clinics in Texas. President Trump promised to appoint justices who would overrule Roe v. Wade. Justice Kavanaugh, when he was an appeals court judge, voted to allow the federal government to delay the abortion of an unaccompanied immigrant minor held in federal custody. State legislatures are racing to pass abortion restrictions. And the court is now being asked to take up cases challenging those restrictions. So supporters of abortion rights have reason to worry. The court’s decision on Monday doesn’t take that away. | Here’s what we know. Chief Justice Roberts was in dissent in the court’s decision two years ago in Whole Women’s Health v. Hellerstedt, in which the court struck down restrictions that served no legitimate health interest and would have shuttered 75 percent of the clinics in Texas. President Trump promised to appoint justices who would overrule Roe v. Wade. Justice Kavanaugh, when he was an appeals court judge, voted to allow the federal government to delay the abortion of an unaccompanied immigrant minor held in federal custody. State legislatures are racing to pass abortion restrictions. And the court is now being asked to take up cases challenging those restrictions. So supporters of abortion rights have reason to worry. The court’s decision on Monday doesn’t take that away. |
| But we also know that the chief justice cares about the court’s institutional legitimacy. He has often expressed concern about how partisan confirmation hearings for court nominees can damage the court’s reputation as an independent arbiter. He has spoken of his obligation to try to achieve consensus, and in the 2016-17 term, nearly 60 percent of the court’s decisions were unanimous. That often means narrowly drawn decisions that make only incremental changes. Most recently, Chief Justice Roberts rebuked President Trump for attacking a judge as “an Obama judge,” declaring that there are no Obama judges or Trump judges — only judges. | But we also know that the chief justice cares about the court’s institutional legitimacy. He has often expressed concern about how partisan confirmation hearings for court nominees can damage the court’s reputation as an independent arbiter. He has spoken of his obligation to try to achieve consensus, and in the 2016-17 term, nearly 60 percent of the court’s decisions were unanimous. That often means narrowly drawn decisions that make only incremental changes. Most recently, Chief Justice Roberts rebuked President Trump for attacking a judge as “an Obama judge,” declaring that there are no Obama judges or Trump judges — only judges. |
| The court’s legitimacy, of course, rests on more than unanimity or incremental change. It rests on respect for precedent and the idea that court’s decisions don’t swing with each new president. That means that the court doesn’t lightly upend precedents like Roe v. Wade, now in place for nearly half a century, and already reaffirmed once against a concerted effort to overturn it. And most important, the court ought to be especially careful about upending settled expectations about core constitutional rights — such as the right to choose an abortion — that have played a central role in the ongoing struggle by women for equal status. | The court’s legitimacy, of course, rests on more than unanimity or incremental change. It rests on respect for precedent and the idea that court’s decisions don’t swing with each new president. That means that the court doesn’t lightly upend precedents like Roe v. Wade, now in place for nearly half a century, and already reaffirmed once against a concerted effort to overturn it. And most important, the court ought to be especially careful about upending settled expectations about core constitutional rights — such as the right to choose an abortion — that have played a central role in the ongoing struggle by women for equal status. |
| The question now is not what the Supreme Court soothsayers will tell us, but whether Chief Justice Roberts and his fellow conservatives uphold the integrity of the court, or use their new majority to deliver on Trump’s promise. | The question now is not what the Supreme Court soothsayers will tell us, but whether Chief Justice Roberts and his fellow conservatives uphold the integrity of the court, or use their new majority to deliver on Trump’s promise. |
| Louise Melling is a deputy legal director of the A.C.L.U., where she oversees the organization’s work on reproductive freedom. | Louise Melling is a deputy legal director of the A.C.L.U., where she oversees the organization’s work on reproductive freedom. |
| Follow The New York Times Opinion section on Facebook, Twitter (@NYTopinion) and Instagram. | Follow The New York Times Opinion section on Facebook, Twitter (@NYTopinion) and Instagram. |