Update: This article has been revised to include a ruling on the Texas law issued by the Supreme Court late Wednesday.
The judicially embarrassing episode was capped off by a brief 5-to-4 ruling by the Supreme Court late Wednesday, in which the court said it would not block the law while lower court resolved some technical legal issues only indirectly related to the actual abortion ban.
No court issued a decision that said “Roe v. Wade is overturned.” No court issued a decision explaining how it could be constitutional for Texas to effectively ban abortions at a point before many women even realize they are pregnant. But the courts’ decisions have the same effects on women in Texas as a decision explicitly overruling Roe. It is a curious and intellectually cowardly way to resolve an issue that conservatives have often described as involving important legal and moral principles.
Dissenting from the Wednesday ruling (which she called “stunning”), Justice Sonia Sotomayor — joined by Justices Stephen G. Breyer and Elena Kagan — summed up the situation well: “Presented with an application to enjoin a flagrantly unconstitutional law engineered to prohibit women from exercising their constitutional rights and evade judicial scrutiny, a majority of Justices have opted to bury their heads in the sand.”
It’s still possible the courts will find that the law is unconstitutional (as it plainly is). But even if that happens, belatedly, significant damage would have already been done, as abortion providers have stopped scheduling abortions past the six-week mark and women are unable to obtain the procedure. Some providers are likely to avoid administering abortions at all, to avoid the risk of lawsuits. Some clinics may shut their doors permanently.
The legal dodge was made easier to pull off by the peculiarity of the Texas law, known as S.B. 8, which was passed in May. The law allows anyone — really, anyone! — to sue medical service providers who perform abortions on women who have been pregnant for longer than six weeks, as well as anyone who assists the women in obtaining an abortion (such as friends, family and clinic employees).
Courts have struck down other so-called heartbeat bills banning abortion at the six-week mark — supposedly the time when a fetal heartbeat can be detected — because they infringe on the constitutional right to get an abortion before the point of fetal viability. (States may regulate abortions before that point, but they may not impose on women seeking abortions an “undue burden.”) The Texas law is clearly no more constitutional than those other bans, but the law’s structure introduced new wrinkles by permitting private individuals, rather than state officials, to enforce the law, opening the door for judges to focus on legal technicalities.
As Sotomayor put it: “the State’s gambit worked.” The new enforcement mechanism in the Texas law created questions about who the providers should sue to prevent the law from being enforced — because state officials, who are often the defendants in such lawsuits, would not be the ones to enforce the law. And courts then used these procedural uncertainties that Texas had created to allow the law to go into effect.
Before the Supreme Court weighed in, the 5th Circuit Court of Appeals had also thwarted challenges to the law. Early this week, a federal-district court was set to consider the abortion providers’ request to prevent the law from going into effect. But before the court could hold the hearing, a three-judge panel on the Court of Appeals for the 5th Circuit — including two judges nominated by President Donald Trump — used the procedural questions about how the law would be enforced as an excuse to enter an order that “stayed” the proceedings in the district court five days before the Texas law was set to go into effect. The issues the appeals court was weighing included complicated questions about whether state officials had “immunity” from the legal challenges. The issuance of the stay meant the case was placed on hold, preventing the district court from even holding a hearing on whether the law could be implemented.
Basically, the court of appeals ran out the clock on the abortion providers. The court could have acted more quickly if it wanted to on the technical questions, thereby allowing the district court proceedings to continue. But it chose to hit pause on the proceedings.
Faced with a court of appeals that refused to put the Texas law on hold, and that refused to give them the chance to persuade the district court to consider whether to put the Texas law on hold, the abortion providers turned to the Supreme Court for help: They asked the justices for an emergency injunction against the Texas law on Monday (within 24 hours of the court of appeals’ decision refusing to put the Texas law on hold).
The Supreme Court decided there was no rush. Justice Samuel A. Alito Jr., who oversees the 5th Circuit in matters like this, declined to issue an administrative stay while the Supreme Court decided whether to block it on a more permanent basis. He also requested a response from the state to the providers’ request for an injunction, due a mere eight hours before the law was set to go into effect. The response came in, after which the abortion providers immediately filed a reply brief.
And then more than 24 hours of silence — as the law took effect. Finally, late Wednesday, came the ruling that the court would not intervene as lower courts worked out the questions involving the enforcement of the law. “[T]his order,” the majority stressed, “is not based on any conclusion about the constitutionality of Texas’s law” — cold comfort to the people challenging it.
Let’s be clear: By refusing to stay the law, the Supreme Court allowed Texas to end legal abortion in the state. And by focusing only on procedural issues, the court has avoided having to own up to what it is doing.
It’s hard to know what is motivating the justices who decided on this course of action. Perhaps some thought that while a ruling that effectively overturned Roe in one of the nation’s largest states would be politically explosive, a decision that has the same effect but focuses only on highly technical questions, might not draw as much attention or inspire as much anger. Perhaps some justices simply didn’t know what to do with the case in light of the complex enforcement mechanism in the Texas law.
The court has already agreed to hear, next term, a case involving a similar law in Mississippi that bans abortions after 15 weeks of pregnancy (a law that is stayed). Perhaps the justices think that case offers a better chance to lay out its current thinking on abortion, since it doesn’t involve the procedural complexities in the Texas case.
Certainly, if the court is going to reverse itself on a controversial and polarizing issue like abortion — and revoke the right — American citizens deserve to hear the reasoning. How can it be constitutional for a state to implement a law that effectively bans abortion? The court evaded that responsibility this week. And yet for now, women in Texas are living in a world without access to abortion. Women in Texas are living without Roe.