Roberts ultimately concludes that he cannot uphold a law that is nearly word-for-word identical to another law that the Court struck down four years ago. But his opinion is laden with hints that, in a future case, he is likely to vote to restrict — or even eliminate — the constitutional right to an abortion.
Roberts opens his opinion by declaring that he still believes that Whole Woman’s Health was “wrongly decided.” He notes that “neither party has asked us to reassess the constitutional validity” of the Court’s seminal abortion rights decision in Planned Parenthood v. Casey (1992) — a hint that, if future litigants directly attack Casey, Roberts will welcome such a challenge. And he spends as much of his opinion attacking Breyer’s approach to this case as he does explaining why he reluctantly voted to honor stare decisis.
Whole Woman’s Health, Roberts notes, states that “the rule announced in Casey ... requires that courts consider the burdens a law imposes on abortion access together with the benefits those laws confer.” But balancing these burdens against these benefits, Roberts suggests, is entirely beyond the capacity of the judiciary.
In this context, courts applying a balancing test would be asked in essence to weigh the State’s interests in “protecting the potentiality of human life” and the health of the woman, on the one hand, against the woman’s liberty interest in defining her “own concept of existence, of meaning, of the universe, and of the mystery of human life” on the other. There is no plausible sense in which anyone, let alone this Court, could objectively assign weight to such imponderable values and no meaningful way to compare them if there were. . . Pretending that we could pull that off would require us to act as legislators, not judges, and would result in nothing other than an “unanalyzed exercise of judicial will” in the guise of a “neutral utilitarian calculus.”
In this sense, Roberts’s opinion harks back to Justice Bryon White’s dissenting opinion in Roe v. Wade (1973) itself, which similarly argued that courts are not competent to weigh the difficult moral questions presented by the abortion debate. “In a sensitive area such as this, involving as it does issues over which reasonable men may easily and heatedly differ,” White wrote in that dissent, courts should leave the question of abortion rights “with the people and to the political processes the people have devised to govern their affairs.”