Abortion rights get a court win (but perhaps a political loss) | COMMENTARY

Baltimore Sun (MD)

In the 24 hours since the U.S. Supreme Court struck down a Louisiana law that sought to regulate abortion clinics out of business, it’s become increasingly obvious that there was only one clear winner. That would be the legal concept of stare decisis or the rule of precedent. Having decided just four years ago that a similar Texas law was unconstitutional, Chief Justice John Roberts could not bring himself to ignore the previous ruling even though he dissented with the conservative wing in that particular case. Many social conservatives were made upset by this. They had long assumed that the retirement of Justice Anthony Kennedy, whose post is now held by Brett Kavanaugh, would lead to a different outcome. And while Justice Kavanaugh, who two years ago pledged fealty to Roe v. Wade as “settled law” in his confirmation hearing, voted against abortion as his backers hoped, Mr. Roberts recognized that precedents still matter.

Yet despite all the fussing and fuming among Republicans who now see Mr. Roberts, a George W. Bush appointee, as something of a turncoat given other recent decisions protecting rights of transgender individuals and supporting immigrants who choose to stay in this country under the Deferred Action for Childhood Arrivals program, the decision in June Medical Services v. Russo is far from a hands-down win for a woman’s right to choose. Indeed, many legal scholars believe it opens the door more broadly to future restrictions with the chief justice’s opinion referring to a more narrow standard of “undue burden” than what previous courts had adopted. Thus, he may have sown the seeds of a future anti-abortion victory in the nation’s highest court while giving President Donald Trump and his most ardent backers a much-needed rallying cry going into the November election.

That’s not to suggest that Mr. Roberts had the president’s reelection on his mind. There’s no reason to believe he’s a big fan given clues like his rebuke of Mr. Trump in 2018 when the president used the term “Obama judge” to belittle the author of an adverse ruling on immigration policy. “We do not have Obama judges or Trump judges, Bush judges or Clinton judges,” the chief justice snapped back. “What we have is an extraordinary group of dedicated judges doing their level best to do equal right to those appearing before them.” But Mr. Roberts is capable of recognizing that the June Medical Services was a seriously flawed law whose advocates couldn’t really justify why hospital admitting privileges were so crucial to abortion providers (beyond closing down the majority of Louisiana clinics). And what we know for sure is that he doesn’t hold either an all-in or all-out view of abortion.

Here’s the political reality of where things stand: President Trump needed a cause to rally his troops. Polls show him so far behind in a race against former Vice President Joe Biden in crucial swing states that experts are beginning to question whether he can be competitive let alone win. Supreme Court appointments were a winning issue for him in 2016 and with this ruling, the hunger to replace a Stephen Breyer (who turns 82 in August) or Ruth Bader Ginsburg (87 and a cancer survivor) among evangelicals and their kindred spirits is palpable. Pro-choice groups certainly have their fervent following, too, but while a majority of Americans oppose overturning Roe v. Wade, the issue never seems to motivate the left quite like it does the religious right. Perhaps at some point, Democrats will notice the ramifications of a far-right tilted Supreme Court on a variety of issues from civil rights to climate change but at the moment they seem more transfixed by the latest Trump tweets.

Should Mr. Biden follow the Trump game plan and release a list of potential Supreme Court nominees as Mr. Trump did four years ago courtesy of the Federalist Society? Absolutely not. If voters are settled on anything, surely it’s the need to support the rule of law above political self-interest because they are getting tired of a president who does exactly the opposite at every turn. But it wouldn’t hurt Mr. Biden and his supporters to educate Americans on the enormous stakes if the court continues its rightward path and its majority holds views less and less like the mainstream of America. Maintaining the status quo on abortion rights is better than a step backward, of course, but perhaps in this case, only slightly.

The Baltimore Sun editorial board -- made up of Opinion Editor Tricia Bishop, Deputy Editor Andrea K. McDaniels and writer Peter Jensen -- offers opinions and analysis on news and issues relevant to readers. It is separate from the newsroom.

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