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The Passive-Aggressive Vices of John Roberts


The 8th Circuit Court of Appeals today lifted an injunction that had stopped Arkansas from enforcing regulations on abortion it passed in 2017. The reason? John Roberts’s concurrence in June Medical Services, which nominally upheld the outcome in Whole Woman’s Health while asserting that the standard applied by Breyer in the latter (which mandated consideration of both the purported health benefits of the legislation as well as its burdens) was wrong, and the Court should only consider the latter. 8CA treated it as controlling, and because the Arkansas law is different than the Texas and Louisiana ones, allowed it to go into effect while remanding the case:

Hence, a series of arbitrary obstacles will go into effect:

John Roberts is one of the few elite Republicans who actually seems to put a high priority on maximizing the chances that a Republican will be staffing the federal judiciary for the next four years, and in June Medical he did something really clever and insidious. By voting to strike down an abortion law, he gets media cred as a bipartisan moderate, criticism from conservatives that reinforces the message, keeps liberals feeling good about the Supreme Court during an election year despite issuing an endless series of anti-voting-rights opinions, while giving states much broader latitude to regulate abortion so long as they do not use the precise method Texas and Louisiana did. So states can continue to limit abortion access, and the Court remains free to overrule Roe (whether directly or sub silentio) in an election off-year. Don’t be fooled — Roberts hasn’t become a sudden supporter of woman’s reproductive rights, and this will become clear as Trumpified circuit courts use June Medical to vacate injunctions against abortion laws.

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