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Justice Roberts Splits the Baby

The pro-life movement has a hard road ahead, with a shift in their favor not likely to happen for a decade at least

The U.S. Supreme Court’s Chief Justice, John Roberts, has taken upon himself the Solomonic role of American philosopher king left vacant at Justice Anthony Kennedy’s retirement. Seemingly committed above all to the institutional legitimacy of the Court, Roberts has in the last few weeks cast a series of votes in the Bostock, Espinoza, and June Medical Services cases that appear to show him to be trying to placate both sides of America’s culture wars by offering something to each.

By joining the Court’s four liberals in endorsing Justice Neil Gorsuch’s majority opinion in the Bostock v. Clayton County LGBT civil rights case, Roberts has endorsed a strained reading of the 1964 Civil Rights Act’s prohibition on sex discrimination as prohibiting discrimination based upon sexual orientation—a reading that may be “textualist,” but certainly isn’t originalist. This is a victory for LGBT activists comparable to the epochal Obergefell decision on same-sex marriage, and a catastrophe for social conservatives, as described by Helen Andrews in the pages of TAC. 

By authoring the conservative majority’s opinion in Espinoza v. Montana, Roberts has handed social conservatives a significant victory, holding that states violate the Free Exercise Clause of the First Amendment when they withhold from parochial and other religious schools aid that they had made available to non-religious schools. Roberts noted the roots of Montana’s prohibition on aid to “sectarian” schools in the frank anti-Catholic bigotry of the Know Nothing era’s Blaine Amendments (on the books in 37 states), and while his opinion did not declare them unconstitutional outright, it stripped them of much of their practical effect, and opened the door to challenges to those amendments as being unconstitutional in their entirety. This was a big win for social conservatives, and an important defeat for secular progressives.

Having handed a major victory and a major defeat to both sides of the culture war this term, Roberts handed each of them half a loaf with his tie-breaking concurrence in June Medical Services v. Russo case. Roberts held in his controlling concurrence that Louisiana’s requirement that abortionists must have hospital admitting privileges was unconstitutional under the Court’s precedent in Whole Women’s Health v. Hellerstedt, despite having joined Justice Alito’s dissent in that case. He larded his opinion with quotations from Blackstone, Burke, and Hamilton in an unwitting self-parody of the bromides of “conservative” jurisprudence. But while he stretched his jurisprudence far beyond credibility to hand the pro-choice camp a substantive win, Roberts has spooked liberal commentators with the sops he threw to pro-lifers in his concurrence: he pared back the liberal Whole Women’s Health majority’s balancing test that pitted the states’ interests in protecting maternal safety and unborn life against the burdens placed upon the penumbral “right” to an abortion, and restored the less onerous “undue burden” test enunciated in 1992’s Planned Parenthood v. Casey, signaling that in future cases, only the degree of burden, and not any showing of health benefits to the mother, will be dispositive.

Moreover, Roberts took care to note that neither party in June Medical Services had challenged Casey itself, which commentators on both sides have taken as a possible invitation for pro-life states to bring such challenges—an especially significant development given that, contrary to popular perception, it is Casey, and not the Court’s earlier, famously muddleheaded opinion in 1973’s Roe v. Wade, that has since 1992 provided the jurisprudential rationale for the “right” to an abortion. As the dissenters pointed out, Roberts’ concurrence in June Medical Services was an exercise in motivated reasoning, treating the precedent in Whole Women’s Health with far more respect than prior Roberts opinions have treated older and more important precedents in other areas. He also mischaracterized the balancing test enunciated in that case as a reaffirmation of the undue burden test in Caseyso he could pretend to be deferring to Whole Women’s Health while discarding its central legal holding. Roberts reached the substantively pro-choice result he wanted to reach, but he sacrificed not merely the unborn, but his intellectual integrity to get there. 

Why has Roberts ruled this way, and what should social conservatives to do about it? It has become conventional wisdom that Roberts is an institutionalist above all, and will stretch interpretive credulity—as in his Obamacare decision—in order to avoid a controversial (i.e., conservative and politically important) decision that would delegitimize the Court in the eyes of mainstream elite liberal opinion. With polls and incumbent incompetence making a future Biden administration look probable, Roberts’ concerns about a Democratic White House and Senate cooperating to avenge the blocked nomination of Merrick Garland by packing the Supreme Court may have been a prominent motive for Roberts’ illogical mess of an opinion. 

Where does this leave the pro-life movement? The movement is divided into two sorts of activity—local activities like sidewalk and crisis pregnancy counseling, and state and national political activities like support for pro-life politicians, the March for Life, Louisiana’s now-overturned abortion law, and the conservative legal movement’s doomed attempt to defend it in court. Roberts’ opinion doesn’t change the landscape for local activities at all, and we may expect them to continue. 

But the state and national political landscape have changed a great deal in the last four years—and are likely to change further very rapidly. As mentioned above, at the national level, a Biden win in November looks likely. So while social conservatives can argue about whether it still makes sense to support Republicans for the presidency given the records of Roberts and Gorsuch, the debate is probably academic.

Likewise, while social conservatives can continue to debate jurisprudential philosophy, the conservatives on the Supreme Court already have developed legal philosophies, and with the almost certain retirement of Justice Ginsburg early in a Biden Administration, and the likely retirement of Justice Breyer soon thereafter, it will be a long time before social conservatives have the chance to expand the pro-life bench there. At most, there might be the opportunity after 2024 to replace social conservatism’s greatest jurisprudential champion—Justice Clarence Thomas—with a justice quite unlikely to equal his incomparable record. For now, any pro-life legal victories will come only by crafting legislation that can survive Roberts’ revived undue burden test, or by mounting a challenge to Casey that he might favor. Then again, he might greet it with more Burkean bromides about inherited tradition, rather than a uncompromising decision in the mold of Clarence Thomas that would overturn bad precedent, and stop the legal murder of millions of children.

In short, we are likely to have a divided 4-1-4 Court again for the next decade at least, with Justice Roberts sitting on Anthony Kennedy’s old throne as our reigning kritarch. The only remotely plausible alternative to this scenario is one where Justice Thomas—not a young man—is replaced by a pro-choice justice, giving the champions of abortion a lasting firm majority. In neither case can great legal strides be anticipated by the pro-life movement at the Supreme Court. At best, Justice Roberts might apply the undue burden test from Casey to allow socially conservative states to chip away in an incremental—one might say Burkean—way at the “right” to murder an unborn child.

With national political and legal progress likely to be stagnant in the best case scenario, pro-lifers have begun to consider civil disobedience, reviving a recently dormant discussion that that had begun with 1996’s “The End of Democracy?” symposium in First Things on liberal court decisions. Now, we see voices like Matthew Walther advocating that the pro-life movement adopt the confrontational tactics of BLM. He writes that pro-lifers should abandon the impotent respectability of the March for Life for scribbling Black Lives Matter on the bust of notorious eugenicist and early abortion advocate Margaret Sanger in the National Portrait Gallery. Walther suggests that just as progressives have created “sanctuary cities” where federal immigration law is flouted, perhaps pro-life state governments should declare themselves “sanctuary states” and tell the Court, as President Jackson once did, that they have made their decision, and now let them enforce it.

Sixty million unborn children have been killed in the womb in America since Roe. Legal abortion should be seen by any pro-life Christian as this nation’s worst moral abomination since slavery. Just as it took a Civil War to end that scourge, so it is impossible not to sympathize with those who advocate extra-judicial means to end the scourge of abortion. But reason, not sentiment, must guide the prudent statesman. The realities are as follows: BLM enjoys elite cultural support that the pro-life movement very much does not, and while civil disobedience by progressives will be met with the indulgence we’ve seen toward the CHAZ in Seattle, or the rioters in New York, sustained confrontational civil disobedience by pro-lifers would be crushed as thoroughly as Cliven Bundy’s conservative activists. One need only compare the fates of BLM rioters who have destroyed businesses to that of those who have destroyed abortion clinic property without injuring clinic employees—the former unmolested, the latter crushed as domestic terrorists—to see that any civil disobedience serious enough to get the establishment’s attention will be met not with an open hand, but with a boot in the face. 

Walther’s suggestion of sanctuary states is likewise doomed. Even in the reddest of red states, the fear of corporate boycotts has frightened legislators away from “transgender bathroom bills” that have drawn the ire of LGBT activists. It would take only the slightest hint of such a boycott to derail any “sanctuary state” legislation in even the deepest crimson of state capitols. Moreover, in the vanishingly unlikely event that such legislation became law, it would be trivially easy for our pro-abortion mainstream media to paint any intervention in force by the Biden Administration to enforce abortion “rights” as the second coming of President Eisenhower calling out the National Guard to force desegregation upon a truculent South. The narrative writes itself, and it’s a kind of story that both Hollywood and generations of college professors and Howard Zinn-toting social studies teachers have already primed the last few generations of American students to embrace—as we are seeing now with BLM.

Realistically then, neither respectable electoral politics nor confrontational action offers the pro-life movement any hope. What is left after those are gone is those sidewalk counselors and crisis clinic volunteers. What is left is the Benedict Option advocated by TAC’s own Rod Dreher, who has shared the tragic fate of Cassandra—he has prophesied doom and been proven right when it was too late to avert catastrophe. In other words, for Christian social conservatives surveying the wreck of our post-Christian culture presided over by a kritarchy headed by the establishmentarian John Roberts, it is no longer a Benedict “Option.” It is simply the ineluctable reality.

Thomas FitzGerald writes from Texas. You can follow him on Twitter at @tmacgearailt