Chief Justice Roberts tips his hand on the abortion issue

It appears that, if we didn’t know before, we now definitely know where Chief Justice John Roberts stands with regard to two blockbuster abortion cases.

In a newly released dissenting opinion, Roberts seemed to make it clear that he will be upholding Roe v. Wade and Planned Parenthood v. Casey against any attempts to undermine them. 


Roberts’s dissenting opinion was in a case that the Supreme Court just heard regarding the Texas Heartbeat Act.

The legislation bans abortions once a fetal heartbeat is detected, and it places enforcement in the hands of Texas residents. But, the law’s constitutionality is not what the Supreme Court was considering on Friday. Rather, the justices were considering preliminary issues.

One of those issues was whether or not the law should remain in effect while it is being litigated. Here, the Supreme Court ruled that it should. This was a win for advocates of the law.

The Supreme Court, though, also gave a win to those challenging the law by ruling that they can proceed with their challenge. Texas was arguing that such a challenge had to wait until someone was sued for violating it.

There were other nuances to the court’s ruling as well. But, more significant, here, was not what the judges ruled, but what the judges – specifically Roberts – had to say in their opinion.

Roberts appears to tip his hand

Although this Texas law is not before the Supreme Court yet, a similar law from Mississippi is in Dobbs v. Jackson Women’s Health. This law bans abortions at the 15-week mark.

This law is a direct challenge to Roe and Casey, which, together, allow pre-viability abortions and stop states from placing an “undue burden” on this right. The 15-week mark, even today is still pre-viability.

The Supreme Court already heard oral arguments in this case, but a decision is not expected until the Summer. The big question is whether or not the court will uphold Mississippi’s law and, therefore, deal a serious blow to Roe and Casey. We don’t know the answer, but Roberts just gave us some insight into his opinion on the matter.

In his dissenting opinion, Roberts wrote:

The Constitution is the ‘fundamental and paramount law of the nation,’ and ‘[i]t is emphatically the province and duty of the judicial department to say what the law is. If the legislatures of the several states may, at will, annul the judgments of the courts of the United States, and destroy the rights acquired under those judgments, the Constitution itself becomes a solemn mockery.

Many are taking this as a sign that Roberts will uphold Roe and Casey against these challenges from Mississippi and Texas. At this point, this probably will not come as a surprise to many who have been following Roberts’s decisions. But, the bright spot, here, for pro-life advocates is that the court doesn’t need Roberts to overturn Roe and Casey. 

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