Roberts' vote in the Louisiana case was the fourth time in recent weeks that he has held the decisive vote on 5-4 outcomes that otherwise split the court's conservative and liberal justices.
The Supreme Court order was issued by the narrowest of margins.
Abortion advocates celebrated the ruling, calling it a step forwards for women's rights, while pro-life leaders excoriated the decision, which they said provides opportunities for more unsafe abortion procedures. If the Court had lifted the stay, two out of the three abortion clinics in the state might have been forced to close. Even if that doctor worked seven days a week, the judge said, the physician could not provide for the 10,0000 women a year seeking abortions in the state.
And that, says Litman, is the ideal cover for conservative judges to use for the next novel anti-abortion regulation that comes along. The ruling would instead be a green light to Republican-run states that the court will judge virtually no burden to be "undue".
Last night, a majority of the justices granted their application for a stay, delaying the law from taking effect pending a future ruling on the merits of the case.More news: Skype adds a new "blurred background" feature
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Ed Whelan, president of the Ethics and Public Policy Center and a contributor to National Review, said in a February 8 post he does not think Roberts' vote for the stay "signals anything about how he will rule on the merits of the case". Thus, the four justices who dissented in the Louisiana case were saying not just that the previous decision should be overturned, but that the precedent itself is utterly meaningless and can be ignored even before they overturn it, if the law in question has the salutary effect of making it impossible for women to exercise their reproductive rights (that's not how they put it, of course, but that's the essence of their position).
Kavanaugh wrote a dissent that said he would have let the law go into effect because the appeals court had said "the new law would not affect the availability of abortions from. the four doctors who now perform abortions at Louisiana's three abortion clinics". Justice Brett Kavanaugh, the man who assured Sen. The Supreme Court said in the Texas case that neither was needed to protect women's health and that both requirements imposed "a substantial burden" on a woman's right to abortion. She urged the Court to take up the case in full in order to review the factual evidence of such safety reforms.
William Jacobson, a Cornell law professor and conservative legal commentator, concluded it was "unlikely the law ever is going to be allowed to go into effect in the current configuration of the court". By that measure, Roberts took the conservative path: He voted to maintain the status quo. Attorneys representing abortionists appealed to the Supreme Court, arguing the law is no different from the Texas law the Supreme Court struck down in 2016's Whole Woman's Health v. Hellerstedt.
The Supreme Court will now consider whether to grant a writ of certiorari and issue a final opinion in the case.
Kavanaugh said the doctors would continue to be allowed to perform abortions during the 45-day period and would be given leeway by regulators to comply with the law. That vote, though, likely had nothing to do with abortion and everything to do with Justice Roberts understanding his job.
Thus, while Roberts' role in joining the court's four liberals to block the Louisiana law is significant, and determined the outcome, his motives are only a matter of speculation.