Last week the Supreme Court did something courts don’t usually do: It gutted Roe v. Wade, a landmark legal precedent that stood for almost 50 years. Since 1973, Roe has guaranteed the legal right to an abortion. It has been so impactful that most Americans know the case by name. Now, the Supreme Court has cast that right into doubt.
Since Roe became law, Republicans have successfully rallied voters with the promise of “retaking” the Supreme Court and ending legal abortion.
The court did not write an opinion discussing and deciding the legal issues implicated by a new Texas law, which bans abortions after the sixth week of pregnancy. Instead, the majority ducked those issues, simply declining to grant an emergency request to block the Texas law while litigation to determine its constitutionality continues.
Texas abortion providers and advocates have sued to block the law. While it’s common for courts to enter an injunction to preserve the status quo in these situations, the courts didn’t do that here. A federal judge in Texas scheduled a hearing to consider it, but the 5th U.S. Circuit Court of Appeals stayed his hand. An emergency appeal brought the case to the Supreme Court days before the law was scheduled to take effect.
To prevail, plaintiffs needed to convince the court there’s a substantial likelihood they’ll win their case and that irreparable injury would occur if the law went into effect. The Supreme Court found this to be true in Roman Catholic Diocese of Brooklyn v. Cuomo in November, when plaintiffs challenged limitations placed on worship gatherings. A law in direct conflict with Roe, which could deny Texas women an abortion until it is too late, seems like it should clearly qualify for just such an injunction. But near midnight on the day the law was set to go into effect, the Supreme Court entered a one-paragraph, unsigned order denying relief.
That made Senate Bill 8 the law in Texas.
Since Roe became law, Republicans have successfully rallied voters with the promise of “retaking” the Supreme Court and ending legal abortion. That’s why in 2016 then-Senate Majority Leader Mitch McConnell, R-Ky., blocked Merrick Garland’s Supreme Court nomination and later pushed through Neil Gorsuch, Brett Kavanaugh and Amy Coney Barrett to complete the court’s conservative 6-3 majority.
Republicans have a history of maneuvering in the courts to try to achieve elusive policy goals. Shelby County v. Holder proved a successful vehicle for denuding the protections of the Voting Rights Act. Efforts to substitute anti-immigrant state laws for federal immigration policy during the Obama administration were initially successful, but ultimately failed.
Abortion has always been the big prize.
But abortion has always been the big prize. Republican-controlled legislatures passed bill after bill, knowing they violated Roe v. Wade. The goal was to create the perfect vehicle for a Supreme Court challenge.
Alabama state Rep. Terri Collins, a Republican, acknowledged the strategy in 2019 when asked about a bill she’d sponsored, the Los Angeles Times reported then: “All our pro-life bills are unconstitutional right now. That’s the goal.” In another interview, per The Washington Post, she said, “This bill is about challenging Roe v. Wade. … This is the way we get where we want to get eventually.”
Ultimately, it was a Mississippi case, Dobbs v. Jackson Women’s Health Organization, involving a law that bans abortion after 15 weeks, that made it to the Supreme Court. That case will be heard next term.
Texas, not content to wait for Dobbs, built its so-called fetal heartbeat bill around a novel public enforcement ploy, hoping to elude judicial review by substituting ostensibly private action for the usual governmental restrictions. The law incentivizes would-be vigilantes to sue anyone who helped facilitate an abortion, from religious counselors to spouses and family members to people who loaned them money to Uber drivers, doctors, nurses and clinic staff.
While the law doesn’t explicitly authorize lawsuits against the women themselves (they can arguably be reached through its “aiding and abetting” language), that’s a mere detail in a statutory scheme that threatens them with the disclosure of highly personal information while discouraging everyone around them from offering assistance.
The scheme is such a transparent violation of Roe that it would have been laughable a few years ago. But now, suddenly, it isn’t. The majority agreed the plaintiffs had presented “serious questions regarding the constitutionality of the Texas law” but then went on to ignore them, saying the case presented “complex and novel antecedent procedural questions on which they have not carried their burden” to show a likelihood of success on the merits.
If you’re struggling to decipher that sentence, Texas’ attorney general explained it: Texas put its law beyond the courts’ ability to block it, he claimed, because there was no one to enjoin — the judges and court clerks the plaintiffs sued weren’t the right defendants and there was no way for the court to block enforcement by private citizens.
A majority of the Supreme Court bought that disingenuous argument. In a bit of pearl-clutching worthy of Maine Republican Sen. Susan Collins, who played no small role in midwifing S.B. 8 into existence by promising new justices wouldn’t undo Roe, the court accepted defeat in the face of Texas’ protestations that it couldn’t be held responsible for its own law. If the Supreme Court’s goal was to destroy confidence in its commitment to following the law and protecting established rights regardless of the justices' personal views, it has certainly succeeded.
There is every reason to believe this malignancy will metastasize to other states.
The chief justice saw it differently, noting in his dissent that the desired consequence of the “unprecedented” scheme was “to insulate the State from responsibility.” Justices Stephen Breyer, Sonia Sotomayor and Elena Kagan each wrote in dissent, highlighting the majority’s legal sophistry. But in the minority, their protestations lacked effect.
There is every reason to believe this malignancy will metastasize to other states. In permitting Texas to elude judicial review, the court has drawn a road map for every like-minded state legislature. Florida Republicans are promising a similar law and Alabama could be next. South Dakota’s governor has directed her “unborn child advocate” to consider the measure.
This is the type of malicious lawmaking that can turn family members against each other and turn neighbors against neighbors. It encourages spying on private citizens in a fashion that is reminiscent of too many nightmarish regimes. It isolates and exposes women and those who support them to unwarranted consequences that can be taken in bad faith or retaliatory fashion.
Most people lack the time or interest to stay on top of Supreme Court rulings, but widespread awareness of the bounty provision, even if ultimately disallowed, will linger in the public imagination. Texas has been stunningly successful in creating a law designed to both circumvent judicial review at this early stage and prevent challenges to the law now in effect. Texas abortion clinics have shuttered to people seeking abortions past six weeks of pregnancy, but no civil lawsuits have been filed, so there is nothing for opponents of S.B. 8 to challenge. Fear and uncertainty have trumped women’s rights.
Inevitably, safe, legal abortion will grow more difficult to access. Women will be at greater risk. It’s easy to envision a woman in medical distress from a miscarriage being abandoned instead of receiving assistance. This supposedly procedural ruling is highly substantive, and with it, the Supreme Court has made women in America worse off.
Roe is still good law. But also, Roe is essentially dead. Under Roe, abortion can’t be prohibited, but in Texas it essentially is. The Supreme Court’s decision sends a message to women and girls that it won’t protect their rights and that they can’t be trusted to make the most intimate decisions about their own bodies. And if they can’t be trusted with that decision, what’s next? Nothing says women are second-class citizens like the Texas anti-abortion law.