By Jonathon Van Maren
When now-Chief Justice John Roberts was nominated to the Supreme Court of the United States by President George W. Bush, pro-lifers were optimistic. In 1990, while serving as principal solicitor general for the first President Bush, Roberts authored a legal brief for the Supreme Court in which he stated: “We continue to believe that Roe v. Wade was wrongly decided and should be overruled…The Supreme Court’s conclusion in Roe that there is a fundamental right to an abortion finds no support in the text, structure, or history of the Constitution.” In the same role, Roberts also argued that Operation Rescue’s picketing of abortion clinics fell under the First Amendment.
It is true that during Senate confirmation hearings, Roberts affirmed that “Roe vs. Wade is the settled law of the land,” adding that “There’s nothing in my personal views that would prevent me from fully and faithfully applying that precedent.” But that differs little from what other justices—who, according to the recent Politico leak are poised to overturn Roe—have said about Roe as established precedent. Precedents can be upheld; they can also be overturned.
It is possible that Roberts, in authoring the Supreme Court brief for the first Bush Administration, was describing the position of the Administration rather than his own views. But there is more evidence—although somewhat circumstantial—that Roberts personally holds pro-life views. His wife Jane Sullivan Roberts served as Executive Vice President for the prestigious pro-life group Feminists for Life of America from 1995 to 1999, and continued to serve Feminist for Life as legal counsel on a pro bono basis. Serrin Foster, President of FFL, described her this way: “Jane is a brilliant attorney. We are very proud of her and appreciative of her service to Feminists for Life and women and children.”
Roberts’ record on the Supreme Court has been a mixed bag, but he has voted to uphold pro-life laws in two major abortion cases. In 2007, he voted with the majority to uphold a ban on partial-birth abortion, and he dissented in 2016 when the Court struck down the Texas abortion clinic restrictions in Whole Woman’s Health. He did, however, uphold that ruling as precedent in 2020 when voting on a nearly identical law in Louisiana. From the available evidence, it appears that Roberts is conflicted between his own pro-life views and his weird worship of legal precedents with regard to abortion.
The general consensus now is that Roberts wants a limited abortion ruling in Dobbs because he believes that will protect the reputation and legitimacy of the Supreme Court. Plenty of good arguments have been made rebutting his alleged view, most recently in the Wall Street Journal. But now that it appears a majority of justices are poised to overturn Roe, how can Roberts dissent? How can he side with the defenders of abortion on demand—or even fail to rise to the historical moment that Americans like his wife have worked towards for so long, and take his place on—and I usually hate this phrase—the right side of history?
For Roberts to fail to meet this moment would be more than simply taking the pragmatic position while others seek to strike a great blow to America’s ugliest institutionalized injustice. It would be to put his affirmative signature on the death warrants of 60 million unborn victims and recognizing the justness of their demise.
Abortion is not about the Supreme Court, or institutional legitimacy, or even politics. Abortion is not about a what—it is about a who. Roberts surely must know this—or at least, understand this. I wonder, then, what he is thinking as he grapples with this case as he sees other justices take their stand. I wonder if is facing a dark night of the soul. I wonder if he agonizes not over the Supreme Court’s reputation, but over the pre-born children who have been killed since Roe and those who will surely die if Roe lives. How can the man who voted against legalizing same-sex marriage because it took the issue out of the people’s hands vote against giving the issue of abortion back to the voters?
Maybe Roberts will vote against overturning Roe. It certainly looks that way right now. But I wonder how he weighs those millions of babies in the balances against wicked, flimsy legal precedents—and decides that voting against the interests of the most innocent and vulnerable members of the human family is something that he can live with. And, for that matter, die with.