Reported by CHRIS ENLOE | April 29, 2022
Court observers suggested Thursday that Supreme Court Chief Justice John Roberts has signaled the court will significantly slash abortion rights. In December, the Supreme Court heard oral arguments for Dobbs v. Jackson Women’s Health Organization. The case is centered on a Mississippi abortion law that prohibits abortion beyond 15 weeks of gestation.
At issue is whether “all pre-viability prohibitions on elective abortions are unconstitutional.” The case ultimately challenges the precedent established by Planned Parenthood v. Casey, which both upheld the right to elective abortions under Roe v. Wade and affirmed the unfettered legality of abortion within the first 24 weeks of pregnancy.
On Thursday, the Supreme Court issued a 6-3 decision in Cummings v. Premier Rehab Keller, ruling that “emotional distress damages are not recoverable in a private action to enforce either the Rehabilitation Act of 1973 or the Affordable Care Act.”
The case is completely unrelated to abortion. But what is interesting, however, is who wrote the majority opinion: Roberts. This matters because the court heard oral arguments for nine cases in December; thus each justice was most likely assigned to write the opinion of one case. Therefore, if Roberts wrote the opinion in this case, it suggests he is not writing the opinion for Dobbs v. Jackson Women’s Health Organization.
“Roberts’ authorship of this opinion suggests (but does not guarantee) that he is NOT writing the abortion decision. Otherwise, he would have two majority opinions from the December sitting and some other justice would have none,” observed Bloomberg News Supreme Court reporter Greg Stohr.
Michigan Law School assistant professor Leah Litman pointed out the significance of this: Because Roberts supports narrowing abortion access but not overturning Roe v. Wade completely, the fact that he may not have been assigned the Dobbs opinion hints that a consequential ruling is forthcoming, probably a rolling back of abortion rights.
Stohr, however, cautioned against rushing to assumptions, because Justice Neil Gorsuch authored two opinions for cases the court heard in November. Still, the distribution of opinion-writing is normally balanced.
The Wall Street Journal editorial board theorized recently that Roberts may attempt to recruit at least one conservative justice to uphold the Mississippi law without a wholesale nullification of abortion rights. It has happened once, when Gorsuch joined Roberts and the court’s left-leaning justices to protect LGBT rights, but whether it will happen again remains to be seen.
For what it’s worth, the Journal predicted the outcome of Dobbs will be a 5-4 ruling with Roberts joining the court’s left-leaning justices and Justice Samuel Alito writing the majority opinion.