In what three dissenting justices appropriately called a “stunning” decision, a 5-4 majority of the Supreme Court denied a petition to strike down a Texas law banning abortions after six weeks of pregnancy. As a result, Texas has prohibited the vast majority of what have been constitutionally protected abortions since 1973’s Roe v. Wade. That it was done in an unsigned order issued at midnight, with no oral arguments at any level of the federal courts, is appropriate in a twisted way. The decision will go down in history as a judicial Pearl Harbor and a day of infamy.
The law in question was ingeniously designed by Texas Republicans to evade interdiction by the courts by making individual citizens, not the government, the enforcement mechanism for the law, giving them bounties to snitch on clinics and even on “abetters” of abortions after six weeks of pregnancy (at a time when many women do not even realize they are pregnant).
The law was initially put on hold by a federal district court that scheduled a hearing to consider its constitutionality. But then a three-judge panel of the conservative Fifth Circuit Court of Appeals canceled the lower court’s hearing and dissolved the stay. It was widely expected SCOTUS would at least stop the law’s implementation long enough to review both the enforcement mechanism and the law’s blatant violation of abortion precedents set in Roe and later Planned Parenthood v. Casey. The affected clinics in Texas had no choice but to petition SCOTUS, and when the Court let the law take effect at midnight on September 1, it was unclear what was happening other than an expression of disrespect for the urgency of the situation. Now it’s clear that five justices wanted to okay the law, allegedly on procedural grounds, while four justices frantically wrote dissents.
The majority’s order (supported without individual elaboration by Justices Clarence Thomas, Samuel Alito, Neil Gorsuch, Brett Kavanaugh, and Amy Coney Barrett) basically accepted the trick Texas played in pretending the state was not creating and enforcing an abortion ban. The order might as well have concluded with the words “well played”:
The applicants now before us have raised serious questions regarding the constitutionality of the Texas law at issue. But their application also presents complex and novel antecedent procedural questions on which they have not carried their burden. For example, federal courts enjoy the power to enjoin individuals tasked with enforcing laws, not the laws themselves. […] And it is unclear whether the named defendants in this lawsuit can or will seek to enforce the Texas law against the applicants in a manner that might permit our intervention.
So the majority threw up its hands and let an unconstitutional abortion ban enforced via vigilante justice remain in force, disingenuously claiming it was not addressing the constitutional argument at all. The dishonesty is of a piece with the pretenses of these justices when they were confirmed that they had no firmly formed intention to overturn reproductive rights. The Court was already scheduled to fully hear a direct challenge by Mississippi to Roe and Casey in its next term, in the case of Dobbs v. Jackson Women’s Health Organization. You have to assume that five of the six conservatives on the current Court decided to take advantage of the confusing procedural landscape of the Texas law to jump the gun.
Chief Justice John Roberts, who has often expressed concerns for the Supreme Court’s dignity, independence, and respect for precedents, broke with his fellow conservatives in dissenting against this order, though he only went so far as to object to the irresponsibility of the majority in rubber-stamping Texas’s devious enforcement scheme:
The State defendants argue that they cannot be restrained from enforcing their rules because they do not enforce them in the first place. I would grant preliminary relief to preserve the status quo ante — before the law went into effect — so that the courts may consider whether a state can avoid responsibility for its laws in such a manner.
The Court’s three liberals went further in a dissent penned by Justice Stephen Breyer that made the obvious point that the majority was allowing the violation of fundamental rights via its transparently evasive enforcement scheme. But the full fury and exasperation of the liberals was given vent in Justice Sonia Sotomayor’s dissent, in which Breyer and Justice Elena Kagan joined:
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. Last night, the Court silently acquiesced in a State’s enactment of a law that flouts nearly 50 years of federal precedents. Today, the Court belatedly explains that it declined to grant relief because of procedural complexities of the State’s own invention. Ante, at 1. Because the Court’s failure to act rewards tactics designed to avoid judicial review and inflicts significant harm on the applicants and on women seeking abortions in Texas, I dissent.
While defenders of the order will claim it has no effect beyond Texas, there is zero question other states with Republican legislatures and governors will follow suit instantly. So long as they copy the Texas law faithfully, they have been given a green light by SCOTUS to overturn Roe and Casey in their own jurisdictions. Court-watchers had been debating whether the conservatives would use Dobbs to gradually unravel the right to an abortion via approval of so-called TRAP laws harassing abortion providers, or an erosion of the viability standard. Now a more radical step has been taken by the cowardly expedient of blessing a ban that we are supposed to refuse to acknowledge as a ban. Not since Bush v. Gore has the Court so aggressively shamed its traditions.
Presumably, affected parties in Texas will renew their challenge to the law once state courts have enforced it. But the tears of joy now emanating from the anti-abortion activists who supported confirmation of the Court’s conservatives are not likely to be turned into tears of rage at this late date.