Why John Roberts Joined the Supreme Court’s Democratic Appointees in an Abortion Case

Roberts dissented in 2016 when SCOTUS struck down an abortion law. What changed this time around?

by Damon Root

In Whole Woman’s Health v. Hellerstedt (2016), the Supreme Court invalidated a Texas law that required abortion providers to have admitting privileges at local hospitals. According to Justice Stephen Breyer’s majority opinion, that regulation served no legitimate health or safety purpose and placed “a substantial obstacle in the path of women seeking a previability abortion,” thus creating an unconstitutional “undue burden on abortion access.” Among the dissenters in Whole Woman’s Health was Chief Justice John Roberts. He would have let the abortion regulation stand.

Today the Supreme Court decided a nearly identical case—June Medical Services v. Russo—on nearly identical legal grounds. At issue was a Louisiana law requiring physicians who perform abortions to have admitting privileges at local hospitals. Once again, Justice Stephen Breyer wrote the opinion. The “substantial obstacle” to abortion access that the Louisiana law creates, he argued, “and the absence of any health-related benefit” render the law unconstitutional.

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