On Monday, abortion rights activists celebrated as the Supreme Court struck down a Louisiana law that would have shut down two of the state’s three abortion clinics. The law, which was similar to the Texas law struck down in 2016’s Whole Woman’s Health v. Hellerstedt, required abortion providers to have admitting privileges at a local hospital, a credential that can be prohibitively difficult to obtain.* John Roberts cast the deciding vote in the 5–4 decision, siding with court’s liberal wing for the third time in just a few weeks.
For social conservatives and anti-abortion activists, the ruling in June Medical Services v. Russo hurt, and the fact that the defeat came from a justice nominated by Republican George W. Bush only sharpened the sting. “We’re disappointed, obviously,” said Kristan Hawkins, the president of Students for Life of America. “We see this as an act of betrayal and an act of cowardice.” She described Roberts as a “turncoat.” Other anti-abortion leaders described the chief justice as “useless” and “a big disappointment.” Alexandra DeSanctis, a staff writer at National Review, called Roberts’ opinion “armchair philosophizing … straight out of a freshman-year dorm room debate.”
But if the anti-abortion movement is united in its disappointment over Roberts’ role in the setback, it is slightly less unified on its significance for the movement’s strategy going forward. The institutional anti-abortion movement has spent years instructing people with anti-abortion convictions to “vote pro-life.” In presidential elections, this means voting for the candidate who will install federal judges seen as friendly to their cause. What does it say about that strategy that a Republican-nominated justice has handed their movement a major defeat?
“We see this as an act of betrayal and an act of cowardice.”
— Kristan Hawkins, president of Students for Life of America
Some activists argue that the loss is simply another reminder that judges matter. Vice President Mike Pence, for example, declared that the ruling indicates “we need more Conservative justices on the U.S. Supreme Court.” Just because Roberts is a letdown does not mean it makes sense to stop investing in the judicial strategy, such thinking goes. Roberts has sided with the court’s liberal wing in several major cases over the past few years, including votes to preserve key aspects of Obamacare. But the president’s supporters within the anti-abortion movement pointed out that the two Supreme Court justices he nominated, Neil Gorsuch and Brett Kavanaugh, faithfully dissented. “President Trump’s two nominees who were confirmed, they were on the right side,” Hawkins told me. “He has upheld his promises to the pro-life community.”
Other Trump supporters were even more blunt about what they see as potentially imminent progress. Johnnie Moore, a member of the president’s evangelical advisory board, tweeted that despite the setback, “conservatives know they are on the one-yard line” and suggested that evangelical turnout in November will therefore be “unprecedented.” Rev. Frank Pavone, national director of Priests for Life, observed to the Associated Press that the oldest two members of the court, Stephen Breyer and Ruth Bader Ginsburg, are liberals. “Nobody can predict the future, but who’s going to name their replacements when the time comes?” Pavone said. “That is a question that motivates a lot of voters.”
Other social conservatives are not so sure. “At some point, even the most ardent pro-life white evangelicals are going to grow weary of Republicans’ ‘More Justices!’ sales pitch,” tweeted Matthew Anderson, a writer in Texas. Andrew Walker, a professor of Christian ethics at the Southern Baptist Theological Seminary, echoed this sentiment. “I don’t know how a conservative would look at what we’ve gotten from so-called conservative justices and not be completely disheartened,” he told me on Monday. “I don’t think this nullifies the conservative legal movement. I don’t think it negates the importance of how judges factor into voting decisions. But it significantly weakens it.”
The decision in June Medical Services came just weeks after another disappointing ruling for social conservatives: a 6–3 decision protecting gay and transgender workers from discrimination on the job. In that decision, Gorsuch wrote the majority opinion, with Roberts and the four liberal justices joining him. Republican Sen. Josh Hawley of Missouri, a rising star within social conservative circles, decried that decision as “the end of the conservative legal movement” from the floor of the Senate on June 16:
The bargain has never been explicitly articulated, but religious conservatives know what it is. The bargain is that you go along with the party establishment, you support their policies and priorities—or at least keep your mouth shut about it—and, in return, the establishment will put some judges on the bench who supposedly will protect your constitutional rights to freedom of worship, to freedom of exercise. That’s what we’ve been told for years now.
For Walker and the religious conservatives he described earlier this year as “Reluctant Trump voters,” Monday’s ruling was a reminder that so far, that bargain has not paid off to their satisfaction. Walker said he has not decided how to vote in November, but the Supreme Court decisions of the past two weeks have “substantively altered” how he factors judicial nominations into his decision. “One of the major premises of why religious conservatives have been willing to pull the lever for someone they think is seriously morally flawed is because we would get good judges,” he said. “I think it’s a major inflection point.”
Correction, June 30, 2020: This piece originally misspelled Whole Woman’s Health.