In a midnight order, a 5-4 Supreme Court green-lit Texas’ six-week abortion ban despite the fact that it violates Roe v. Wade, the landmark opinion – still on the books – that legalized abortion nationwide prior to viability, which can occur at around 24 weeks of pregnancy.
The court’s majority said that the abortion providers behind the challenge had raised “serious constitutional questions” about the law, but that they hadn’t shown they’d be irreparably injured if it were allowed to go into effect for now.
The majority’s opinion, over a spare page and a half, revealed the fragility of Roe going forward.
Nancy Northup, president of the Center for Reproductive Rights, said the ruling will embolden other states and other lower courts to “completely ignore” the 1973 opinion which she described as already a “dead letter in the state of Texas.”
Clinics, Northup said, have already been overwhelmed with people “wondering what can I do and where can I go?”
Key conservatives such as Justice Clarence Thomas have not been shy in the past to vociferously express their opinion on the court’s abortion docket. In 2019, Thomas, who has publicly said Roe was wrongly decided, declared that abortion jurisprudence has “spiraled out of control.” And last year, Justice Neil Gorsuch did not mince his words about the court and abortion: “We have lost our way.”
With the conservative majority poised to curb abortion rights – and Chief Justice John Roberts sometimes straddling the issue – the court’s three liberals, Elena Kagan, Sonia Sotomayor and Stephen Breyer are left fighting in dissent.
Last night they were incandescent.
Sotomayor called the law “flagrantly unconstitutional,” and said that it flouts “nearly 50 years of federal precedents.”
“The Act is a breathtaking act of defiance – of the Constitution, of this Court’s precedents, and of the rights of women seeking abortions throughout Texas,” Sotomayor wrote.
Why Texas matters for Roe
To be sure, by allowing the law, the justices weren’t ruling on the merits of the Texas law and they didn’t directly overrule Roe. The majority claimed as much, writing that the order is not based on “any conclusion about the constitutionality of the law.”
Instead, they were looking at one case with tangled procedural issues concerning whether a particular set of defendants could be sued. Because it was an emergency application, there were truncated briefs and no opportunity for oral arguments or a reasoned opinion.
Legal experts refer to that as the court’s “shadow docket,” where the court – through its action (or inaction) – can take big steps without explanation.
Technically the court’s order is not a determination that the six-week ban is constitutional even if it will have substantive effect and does not preclude future challenges to the state law.
“These kinds of emergency disputes are not a conclusive resolution of the merits of a case,” said Steve Vladeck, CNN Supreme Court analyst and professor at the University of Texas School of Law.
But Vladeck concedes that the shadow docket can have “substantive effects even when they come down on procedural grounds.”
Elizabeth Wydra, who heads the progressive Constitutional Accountability Center, said it was “outrageous that the court did not step in to block this clearly unconstitutional restriction.”
“We will push the court to address the case on the merits and let people across the country know whether or not Roe will continue or not to be the law of the land,” she added.
Still, supporters of abortion rights know that even though the court didn’t rule on the merits, it sent a strong signal about where it’s going.
That’s because in considering how to rule in the case, the justices look at many factors. One of them is whether the clinics would ultimately win on the merits.
And supporters of abortion rights are well aware that the court is now comprised of three appointees of former President Donald Trump, who vowed to appoint “pro-life” judges. Those nominees were in the majority in the Texas order.
Mississippi test coming this term
Until this week, the attention on the court and abortion was on the challenge to Mississippi’s 15-week ban, which represents a direct challenge to Roe. It will be decided after a full round of briefing, a flurry of friend of the court filings and oral arguments, likely by next summer.
And the Texas case could impact that decision as well. Here’s why.
What separated the Texas lawsuit from others is that opponents of abortion in red states got creative in their decades-long attempt to overturn Supreme Court precedent. In a novel legal strategy, they crafted the Texas law in a way that would make it almost impossible to challenge before it goes into effect. That’s because, under normal circumstances, when a challenge is brought to an abortion law, supporters of abortion rights can bring suit against a state official such as a prosecutor or health department employee.
But this law prevents government officials from directly enforcing the ban. Critics say that was done on purpose to try to insulate the dispute from federal court review.
Instead, the law allows private citizens – anywhere in the country – to bring civil suits against anyone who assists a pregnant person seeking an abortion in violation of the ban. That would potentially include someone who transported a patient to a clinic. Or someone who agreed to pay for another person’s abortion.
In casting his vote with the liberals on Thursday, Roberts did express concern that the law “appears to insulate the State from responsibility for implementing and enforcing the regulatory scheme.” He said he thought that it should be blocked to “preserve the status quo” “so that the courts may consider whether a state can avoid responsibility for its laws in such a manner.”
Kagan was not so guarded in her dissent.
“Without full briefing or arguments, and after less than 72 hours’ thought, this Court greenlights the operation of Texas’ patently unconstitutional law banning most abortions,” she wrote. “The Court thus rewards Texas’s scheme to insulate its law from judicial review by deputizing private parties to carry out unconstitutional restrictions on the State’s behalf.”
Once the justices allowed the Texas ban to go into effect, it was a ringing victory for its supporters, who pointed to the fact that clinics in the state said they wouldn’t violate the law, thus halting most abortions in the Lone Star State.
Which means, if the law remains in effect, other states opposed to abortion will try to pass similar laws to broaden the reach.
So by the time the Supreme Court rules in the Mississippi case, the terrain could be different with abortions effectively banned in some states. A conservative justice reluctant to overturn precedent may not have to take such a big step of wiping Roe off the books.
The states will have effectively done so with the novel statute.
This story has been updated with the court’s order on the Texas law and additional details.