The murky legal situation surrounding Texas’s recently enacted abortion ban continues. Every day increases the odds that the radical law will remain in effect until the U.S. Supreme Court decides whether to overturn Roe v. Wade in a separate case involving a slightly less extreme Mississippi law.
To recap the action up until now, Texas enacted a ban (S.B. 8) on abortions after six weeks of pregnancy (with no exceptions for rape or incest). The law is distinguished from other blatantly unconstitutional anti-abortion legislation by an exotic private-sector enforcement scheme designed to frustrate judicial review. It took effect on September 1 after a five-justice majority of the U.S. Supreme Court agreed with a Fifth Circuit Court of Appeals ruling. The lower court’s decision maintained that the absence of a state-government enforcement mechanism meant there were no grounds for federal judicial intervention in the context of an emergency appeal from abortion providers to put the law on hold.
Since then, the U.S. Department of Justice has sought to force judicial review, and providers have made another effort in light of the effective shutdown of abortion services in the state. Now, the Supreme Court has scheduled an oral argument for November 1 to deal with appeals from Fifth Circuit rulings against both of those petitions. There are now four intricately tangled questions before the Court:
(1) Does the majority still believe there is no way to secure federal jurisdiction over a state law that clearly violates constitutional precedents without a state government actor to restrain? There’s no particular reason to think the five justices who let this law take effect (Clarence Thomas, Samuel Alito, Neil Gorsuch, Brett Kavanaugh, and Amy Coney Barrett) have changed their minds on that question any more than the Fifth Circuit did.
(2) Is there a way the Texas law can be challenged that the Supreme Court majority could accept? Yes, it’s pretty clear that the route the five conservative justices think aggrieved parties should take is to challenge the Texas law in state courts once enforcement actions are pursued. Three suits filed by pro-choice plaintiffs under the vigilante-justice provisions of the law are already underway, so in theory, if one or more of these cases get to the Texas Supreme Court, a ruling upholding the law can be appealed to SCOTUS. But that would probably take many months, if not years.
(3) Does the majority still reject the idea that the law should be put on hold until the underlying constitutional issue is reached? Again, there’s no reason to think the Court that brushed aside the effect of its earlier inaction on people needing and providing abortion services will suddenly care about it, notwithstanding Justice Sonia Sotomayor’s angry dissent in the latest ruling (“Every day the Court fails to grant relief is devastating, both for individual women and for our constitutional system as a whole”).
(4) Is the Court already on the brink of overturning Roe and at least significantly restricting any federal constitutional right to an abortion? Quite possibly. Not long after the November 1 hearing in the Texas case, the Court is scheduled to hold oral arguments in Dobbs v. Jackson Women’s Health Organization, Mississippi’s direct challenge to Roe. All roads from challenges to the Texas law probably lead to that epochal case.
No one knows at this point whether the Court will flatly overturn Roe and, if it does, whether it will recognize any residual reproductive rights that might overcome laws like Texas’s. Probably the best evidence we have is the SCOTUS majority’s indifference to what is happening to providers and their clients in Texas. As Justice Sotomayor implies, it’s not consistent with respect for recognized constitutional rights.