Worse Than Texas

S.B. 8 will eventually be defeated but not the six conservatives on the Supreme Court.

Next month will present the Supreme Court with the opportunity, at long last, to ruin Roe v. Wade. Photo: Damon Winter/The New York Times/Redux
Next month will present the Supreme Court with the opportunity, at long last, to ruin Roe v. Wade. Photo: Damon Winter/The New York Times/Redux

Texas’s near-total abortion ban has been the greatest rollback of reproductive rights since Roe v. Wade, and it happened seemingly overnight. The state has banned all abortions after six weeks of gestation and empowered private individuals to sue anyone whom they believe to be “abetting” an abortion for $10,000 in damages, which Attorney General Merrick Garland has analogized to vigilantism. It has forced clinics to shut down or reduce services. “Tip lines” for people to rat out abortion abettors, right down to Uber drivers, have sprung up in multiple counties. Women have fled to overwhelmed abortion providers in neighboring states.

Yet as bad as it’s been, the real horrors are yet to come when the Supreme Court hears a case next month from Mississippi that will likely result in its conservative majority sharply limiting or even overturning Roe. That, not Texas, will likely inflict lasting damage to women’s rights and constitutional protections.

The Court’s majority might have already tipped its hand in the Mississippi case by allowing the Texas law to go into effect, refusing to stop it because of a legal technicality involving who would actually enforce the law. Ordinarily, courts prevent laws from being enforced while litigation proceeds by enjoining government officials from enforcing them. That way, while the propriety of a law is decided, it doesn’t harm people in the meantime. The Texas law, however, circumvents this process through its “vigilante” provision. Because citizens, not the government, are charged with enforcing the law, as Justice Samuel Alito wrote in denying the motion for an injunction, “it is unclear whether the named defendants in this lawsuit” — Texas officials and activists — “can or will seek to enforce the Texas law.” In other words, you can’t get an injunction if there’s no one to enjoin, so the law has gone into effect.

What this means, though, is that, as bad as it is, the situation in Texas is likely temporary. As soon as someone sues, there will be state officials to enjoin: the clerks, judges, and other government officials who help the lawsuits proceed. The law will be, practically speaking, unenforceable.

Moreover, it seems certain that this gimmick will itself be struck down. First, the Department of Justice has now sued Texas, arguing that a federal court can, in fact, preemptively enjoin private citizens because they should be considered “state actors” in a “public enforcement scheme.” Second, commentators have described a host of hypotheticals that show how absurd such a law is. What if New York banned all firearms with a similar civil enforcement provision. Would courts simply let that stand? What if Florida mandated Christian prayer in all public schools, empowering residents to sue if anyone failed to say them? The whole point of injunctive relief is to prevent contested laws from doing harm, and the Court’s exceedingly narrow reading of its jurisdiction has enabled harm to be done.

Contrary to the media hype, Texas Republicans did not overturn Roe. The constitutionality of their law has not yet been decided. They have exploited a legal loophole to create a mirage of having done so.

But there is a more serious threat on the near horizon: Dobbs v. Jackson Women’s Health Organization, a direct challenge to Roe that may well succeed at the Supreme Court.

Dobbs arises out of a Mississippi law that bans abortion after 15 weeks of pregnancy. Roe’s limit was 28 weeks, which, in 1973, was established as the earliest possible date of fetal viability, thus the time at which the fetus becomes a legal “person” with interests a state could legally protect, even against the mother’s wishes.

Lawyers for Mississippi argue that Roe should simply be overturned because there is no explicit “right to abortion” in the Constitution. (In fact, most constitutional rights are not explicitly listed but are derived from broader principles, such as due process and equal protection.) Second, they argue that even if Roe shouldn’t be overturned, the viability line is arbitrary, and states should be able to restrict abortions earlier if they believe the benefits (to the fetus or society) outweigh the burdens on women. Third, the lawyers say, the Mississippi legislature has “found” that “at nine weeks, ‘all basic physiological functions are present,’ as are teeth, eyes, and external genitalia,” and at 12 weeks the fetus “has taken on the human form in all relevant respects” and that these indicia are more relevant to the state’s interest than viability is.

Going still further, Mississippi governor Tate Reeves said in a recent interview that at 15 weeks, “we know that the baby in the womb is practicing breathing, we know that most internal organs have started to form, and we believe that that child is viable outside the womb.” That claim is clearly false: In a 2015 study published in The New England Journal of Medicine of 4,987 babies born before 27 weeks’ gestation, “all infants born before 22 weeks of gestation died within 12 hours after birth.”

But the claim that anatomical development has some bearing on whether a five-inch-long fetus is a legal person is also specious. In what sense does a fetus have a right to life if it cannot yet live? There is no scientific basis for anatomical development being a measurement of life, and yet, in an era of stolen elections and horse-deworming medication, perhaps this “finding” will be accepted by the Court as the legislature’s “factual” determination of when a life is present. That would open the door to all kinds of preposterous “findings,” like the idea that electrical impulses from an embryo are actually a “fetal heartbeat,” as the Texas law claims.

There’s good reason to believe this could happen. Last year, before Justice Ruth Bader Ginsburg died, four conservatives voted to accept the junk science behind Louisiana’s “TRAP” law (i.e., targeted regulation of abortion providers), which would have placed onerous and medically unnecessary requirements on abortion clinics. Now, with Ginsburg replaced by Justice Amy Coney Barrett, that number is probably five. And if junk science is a valid legislative reason for a law, then Mississippi’s imaginary 15-week viability “finding” might carry the day.

Or perhaps, given that at least three sitting Supreme Court justices were picked by religious fundamentalists precisely to overturn abortion rights, they’ll take an even more aggressive tack. This is the first time the new 6-3 conservative majority has faced a challenge to Roe, and given their decision in the Texas case, it’s certainly possible that they will overrule Roe entirely. (Chief Justice John Roberts, formerly the swing vote on the Court, joined the three liberal justices in dissent.) More likely, the Court may limit Roe to such an extent that even Texas’s six-week ban might be constitutional. In particular, the Court may overturn the 1992 ruling in Planned Parenthood v. Casey, which held that no abortion restriction could place an “undue burden” on women. That vague standard, abortion foes argue, should be replaced with a simple balancing of benefits and burdens, which could allow just about anything, depending on how “benefits” are determined. It’s impossible to know what will happen for sure, but certainly the 6-3 conservative majority on the Court and its shocking decision to allow Texas’s ban to take effect suggest that it will severely limit women’s rights to control their own bodies. Realistically, the only question is how severe the limits will be.

And unlike the Texas law, which is already being actively resisted and litigated, there would be very little anyone could do about it. Donald Trump’s three fraudulent justices — one in a seat stolen from President Obama by senatorial misconduct, one seated in the shadow of criminal allegations that were never properly investigated, and a third rushed onto the Court after the 2020 presidential election had already begun — are now in place, probably for life. And they have made it clear where they stand on this issue in their statements, published writings, and recent votes in the Texas case. A Supreme Court decision next year limiting or overturning Roe is basically permanent. At the very least, it will restrict women’s rights for decades to come.

Really, the Dobbs case is probably already lost. The only thing that can really be done is to try to remedy it after the fact with aggressive attempts to flip the legislatures or governorships of red states and with similarly bold efforts to reform the Supreme Court, either by increasing the number of justices or ending life tenure. But that will only limit the damage done to women’s rights. If you think Texas is bad, the worst is yet to come.

Worse Than Texas: The Real Threat to Abortion Is Next Month