There is something inappropriate, even uncomfortable, about Chief Justice John G. Robert’s love letter to precedent in June Medical Services, LLC v. Russo.
On June 29, 2020, the U.S. Supreme Court held unconstitutional a Louisiana law that required doctors who perform abortions in the state to have admitting privileges at nearby hospitals. If the law went into effect, a single provider, or, at most, two, would remain in the state. The vote was 5 to 4. Roberts cast the fifth vote, but he did so in a separate opinion compelled by precedent. The Louisiana law and its burdens on the right to abortion were nearly identical to those in Whole Woman’s Health, and therefore “Louisiana’s law cannot stand under our precedents” – even a precedent that he believes is wrongly decided.
The Chief Justice cares deeply about the legal doctrine of stare decisis, a Latin term for fidelity to precedent, to stand by things decided. He writes in loving devotion to the humility of the principle. The necessity and constraint of precedent. The even-handedness, predictability and consistency of precedent. The integrity it promises. Stare decisis is not an inexorable command. Stare decisis is pragmatic and contextual. Oh! stare decisis, Roberts writes, that “old friend of the common lawyer.” We need nothing more.
In a footnote, Robin West once wrote that the constitutional debates of U.S. abortion law “must be strangely disorienting to anyone who cares about the moral issues.” They are perhaps “worse than fetishistic … a sort of fascistic madness.”
There is a fetishistic quality to June Medical Services in the worship of abstract ideas and the desperate attachment to the legal rules that represent them. Even Roberts admonishes the plurality for its futile effort to mask judicial will in a “neutral utilitarian calculus” of undue burden. There is “[n]o plausible sense in which anyone, let alone this Court, could objectively assign weight to such imponderable values” as the abortion debates raise, and “no meaningful way to compare them if there were.” Seeking to do so would be akin to “judging whether a particular line is longer than a particular rock is heavy.” Strangely disorienting, indeed.
Neither opinion speaks in real terms of the people who need, seek and have abortions, let alone the gut-wrenching experience of abortion in America for so many – those with bills to pay and children to feed, those desperate to escape an abusive relationship and one paycheck away from utter despair, those who America systemically neglects and those whose lives do not matter. There is something disturbing about how much Roberts, as Dahlia Lithwick phrases it, “cares—mercifully—about appearances, institutions, truth, stability, the appearance of adulthood and competence.” And how little he cares about people.
Within the U.S. political context, perhaps this tone can be explained – Roberts is a tactician, an institutionalist, a lawyer’s lawyer. But this tone is also a feature of abortion laws worldwide; alienated from and alienating to the people whose lives they so profoundly affect. Abortion rights as a purely theoretical matter. Abortion law as loveless.
Yet movements are demanding more in a radical revisioning of abortion rights. Rather than write in the steady hand of legal discourse, they act with compassion, solidarity, and love – a language utterly unreadable in abortion law today.
In the U.S., people who have abortions are organizing to reclaim abortion rights from the lawyers, displacing their bright-line and balanced tests with intimate and interior stories of hard conversations and soft blankets, painful cramping and comforting friends.
Beyond the U.S., transnational movements for self-managed abortion (SMA) – the use of pills to end a pregnancy on one’s own terms — marks a material embodiment of that basic right. No longer content to advocate for a better law in the future or to wait for the state to grant rights, SMA activism is grounded in the belief that when people are informed, resourced and supported, they can safely manage their own reproductive lives. This movement contests admitting-privileges laws from their inception.
We are witnessing a break with traditions of mainstream abortion policy advocacy, and the birth of a new politics in the refusal of people to accept the tired terms of the abortion debates and to collectively create what courts and legislatures refuse them. For people to act as though the law was otherwise and to create for themselves a place within it, for people to act as though they were already free and loved, shows us an entirely different path to abortion rights.
Joanna N. Erdman is an Associate Professor and the MacBain Chair in Health Law and Policy at the Schulich School of Law, Dalhousie University in Halifax, Canada.