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Roberts chose precedent, but that won't end abortion debate

In an era when the U.S. Supreme Court has become highly politicized, Chief Justice John Roberts took a principled stance in casting the decisive vote in Monday’s 5-4 decision that struck down as unconstitutional a Louisiana law that would have significantly limited the ability of women there to obtain an abortion.

But the politics of the issue will continue.

Just four years ago in Whole Woman’s Health vs. Hellerstedt, the Supreme Court had found unconstitutional, also by a 5-4 vote, an almost identical Texas law. Both laws would have required doctors who perform abortions to get admitting privileges at a hospital near their clinics. Critics said these laws would not protect the health and safety of patients, as proponents claimed, but were actually aimed at limiting the number of clinics and therefore access to legal abortions.

In the Texas case, however, Roberts was on the losing side. He found the law constitutional, which he acknowledged in his concurring decision in the current case.

“I joined the dissent in Whole Woman’s Health and continue to believe that the case was wrongly decided,” Roberts wrote.

So why strike down the nearly identical Tennessee law? Because of the principle of respecting precedent, known as stare decisis — “to stand by things decided.” Roberts recognizes the dangers of the court swinging wildly back and forth on what is constitutional and what is not.

In his opinion, Roberts references Black’s Law Dictionary’s explanation of stare decisis, “An established rule to abide by former precedents, where the same points come again in litigation; as well to keep the scale of justice even and steady, and not liable to waver with every new judge’s opinion.”

Or with every new election, we might add.

So, is this the last word in the endless abortion debate? Not hardly. There are 16 abortion cases pending before appeals courts, according to Planned Parenthood Federation of America. And Roberts, a conservative who considers as flawed the 1973 Roe vs. Wade decision that found women had a constitutionally protected right to seek an abortion until a fetus could be judged viable, wrote that given the right case precedent can be set aside, and has been, based on “subsequent factual and legal developments.”

In other words, Roe is not safe.

Unlike past landmark decisions, in which the nation accepted the court’s finding and moved on, Roe continues to cause deep divisions nearly a half-century later. This is perhaps because the warring sides come at the issue as polar opposites. Backers of abortion rights see it as a fundamental principle that a woman alone should decide whether to continue with a pregnancy. Abortion opponents say that position disregards the interests of the in-utero developing life.

In Connecticut, while there is not consensus and likely there never will be, it is largely settled law. Support for abortion rights has broad, bipartisan support and is codified in state law. The Connecticut Supreme Court has taken a stronger line on defending that right than has the U.S. Supreme Court.

But in large sections of the South and many central states, political and public opposition remain significant and access to the procedure is limited by a scarcity of clinics, particularly for the poor.

Conservatives and anti-abortion activists — they are aligned but not synonymous — had to be deeply disappointed with Roberts passing on the opportunity to chip away at legal access to abortions. The Louisiana law, if upheld, would have been copied in other conservative states.

Yet ironically, in acting on precedent and not on politics, Roberts has only helped to assure that the Supreme Court will remain the nexus of the abortion debate, a de facto mini legislature on the issue, with the parties competing over which can best stack it.

President Trump and Republicans will look to rally the support of abortion opponents by promising to appoint yet more conservatives to the court to get the precedent-reversing decision they have long sought. Meanwhile, Democrats and their presidential candidate, Joe Biden, will appeal to those, like this editorial board, who see protecting the precedent set by Roe vs. Wade as a fundamental women’s rights issue.

And this emotional debate, 47 years on, continues.

The Day editorial board meets regularly with political, business and community leaders and convenes weekly to formulate editorial viewpoints. It is composed of President and Publisher Tim Dwyer, Editorial Page Editor Paul Choiniere, Managing Editor Tim Cotter, Staff Writer Julia Bergman and retired deputy managing editor Lisa McGinley. However, only the publisher and editorial page editor are responsible for developing the editorial opinions. The board operates independently from the Day newsroom.

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