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As the Supreme Court overturned Roe v Wade, Chief Justice John Roberts agreed with the majority to uphold a Mississippi law restricting abortion, but wanted to stop short of overturning Roe himself.
The high court ruled 6-3 in Dobbs v. Jackson Women’s Health Organization, to enforce a Mississippi law banning abortion after 15 weeks of pregnancy. The Republican-run state of Mississippi has asked the Supreme Court to overturn a lower court ruling that ended the 15-week abortion ban.
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However, while agreeing with the majority to uphold Mississippi law, Roberts criticized his colleagues by taking the additional step of reversing both Roe and Casey’s 1992 decision v. Planned Parenthood.
“We end this opinion where we began. Abortion poses a deep moral question. The Constitution does not prohibit the citizens of every state from regulating or prohibiting abortion. Roe and Casey arrogated that authority to themselves. We now reverse those decisions and return that authority to the people and their elected representatives,” Judge Samuel Alito wrote in the court notice.
But Roberts, in his separate agreement, said he would take “a more measured course”.
He blames Roe and says his standard of ‘viability’ – whereby a woman is supposed to have the right to an abortion until the fetus is deemed capable of surviving outside the womb – set by Roe should be rejected. (“That line never made no sense”) and the right to abortion “should therefore extend far enough to guarantee a reasonable opportunity to choose, but need not extend further – certainly not to viability”.
Roberts later says that “the viability rule was created outside of the ordinary course of litigation, is and always has been completely unreasonable, and disregards the interests of the state since recognized as legitimate”.
He also describes Alito’s opinion as “thoughtful and thorough”, but adds that “these virtues cannot outweigh the fact that his dramatic and consequential decision is not necessary to decide the case before us”.
MORE THAN 2 DOZEN STATES TO RESTRICT ABORTIONS AFTER ROE V. WADE ANNULMENT
“None of this…requires that we also take the dramatic step of completely eliminating the right to abortion first recognized in Roe,” he says.
He thinks there is a middle ground that sees the viability standard thrown out without nullifying Roe himself.
“Here is a clear path to properly adjudicate this case without undoing Roe to the gills: recognize that the viability line must be dropped, as the majority rightly does, and leave for another day if he should reject any right to an abortion at all,” he says.
In his majority opinion, Alito appears unconvinced by the Chief Justice’s third way, stating that there are “serious problems with this approach, and it is telling that no such thing has been recommended by any either of the parties” in the case.
Alito accuses Roberts’ agreement of a “failure to offer a principled basis for his approach” and of doing “exactly what he criticizes Roe for having done: pulling ‘out of nowhere’ a test which”[n]no party or amicus asked the Court to adopt.'”
“While the agreement is driven by a desire for judicial minimalism, ‘we cannot adopt a narrow decision ground simply because it is narrow; it must also be fair,’ Alito says, quoting Robert’s own words in the 2010 Citizens United case.
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Alito also argues that it wouldn’t necessarily make the decision less disruptive for the country, saying the course will be “strewn with turmoil” until he answers the question Robert’s deal would delay.
“In sum, the search for a middle way through competition would only postpone the day when we would be forced to face the issue we are deciding now. The turmoil caused by Roe and Casey would be prolonged,” Alito said. “It is far better – for this Court and the country – to deal with the real problem without further delay.”
Fox News’ Ronn Blitzer contributed to this report.
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