The Texas Abortion Ban Could Lose at the Supreme Court

Pro-choice demonstrators are seen outside of the Supreme Court ion November 1, 2021. Photo: Mandel Ngan/AFP via Getty Images

Supreme Court Justice Elena Kagan usually comes to oral argument with a cool precision, even light amusement. Near the end of Monday’s nearly three-hour session hearing two challenges to Texas’s abortion ban, there were moments where she seemed, to put it mildly, tired of the bullshit.

The right to abortion wasn’t technically at issue today — yet. The justices were supposed to be considering the procedural question of whether abortion providers and the federal government could sue to block Texas’s six-week abortion ban despite the state’s cute attempt to make that impossible by putting enforcement of the law in the hands of self-appointed bounty hunters. The conservative justices asked a lot of questions about whether that structure could be used against constitutional rights they favor (think guns), and the liberals tried to prod that along. It might work to eventually sink the law.

All of Texas’s procedural trickery rankled Kagan, but so did what she pointed out to Texas’s solicitor general Judd Stone: “The actual provisions in this law have prevented every woman in Texas exercising a constitutional right as declared by this court.” Stone tried to interrupt, but Kagan pressed on. “That’s not a hypothetical,” she continued. “That’s actual.”

“That’s just not true, your honor,” Stone insisted. In fact, he said, the number of abortions in Texas clinics have only been cut in half or so.

“I’m sorry, you’re exactly right,” Kagan said with unusual derision. “I should have said, every woman in Texas who has not learned and has not made a decision before six weeks.”

This was the strange tension of today. What the court does with these two cases matters enormously for people in Texas who are being denied abortions right now, but depending on how the court rules on a Mississippi abortion case it hears in a month, it may not matter much by next year.

If we already know exactly the impact of Texas’s law on patients there, it’s because of the Supreme Court itself. For almost 50 years, the Court has never allowed a state to ban abortion before the fetus is viable, at least 24 weeks into pregnancy, but since September 1, when the court refused to temporarily block the law pending challenges, it casually let Texas do so at around six weeks, a stage when many people don’t even know they’re pregnant. The Court’s stated rationale was that the law’s design was too confusing — was it proper to sue state officials if average people were the ones ratting out Texans for aiding and abetting abortion?

Letting the law go into effect in the middle of the night was then, and still is, a puzzling decision, even from the perspective of the Court’s staunchest abortion opponents. The Court had already agreed to hear Mississippi’s ban on abortion at 15 weeks later this term, giving it a chance to cleanly throw out the viability standard and Texas an opening to ban abortion outright without any games. But that is months away from being decided. Right now, the Court’s late-night shadow-docket action has allowed anti-abortion Texans to crow that their law has thwarted more abortions than any other. As Justice Sonia Sotomayor has repeatedly pointed out in her dissents at each turn of this case, “The State (empowered by this Court’s inaction) has so thoroughly chilled the exercise of the right recognized in Roe as to nearly suspend it within its borders and strain access to it in other States. The State’s gambit has worked. The impact is catastrophic.”

It seems clear that something has changed since then, and not only in the lives of people impacted by the law. In September, the Court dragged its feet on a Texas abortion provider’s emergency request to block the law and didn’t even bother to respond until a day after it went into effect. But in late October, it rapidly changed course, rushing to hear the case in its regular docket along with the Justice Department’s new challenge, setting today’s argument with less than two weeks’ notice. Is it a coincidence that a Gallup poll conducted a few weeks after the court allowed SB8 to go into effect showed a drop of nine points in the public’s esteem of the Court since July, its lowest-ever approval rating since Gallup started measuring it in 2000?

Maybe the backlash got the attention of Justices Brett Kavanaugh and Amy Coney Barrett, both of whom voted to let the Texas law go into effect but sounded genuinely doubtful today. Maybe they are actually troubled by the broader implications of letting states do end runs around the Constitution and realize they can wait until the Mississippi case to straightforwardly end abortion rights in red states. Or maybe both Trump appointees, who were confirmed under various sorts of clouds, understand that the performance of genuinely probing the law heightens the appearance of neutrality.

There was one justice who spent today’s argument reaching even further afield for hypotheticals. Samuel Alito wanted to know what would happen if a woman who had a botched abortion after six weeks could use the law to sue the doctor who provided it. The question made no sense — you don’t need a bounty-hunter law to sue a doctor for malpractice — but it did its own public-relations work, entering into the record in a purportedly procedural case the notion that abortion is dangerous and providers are dodgy.

“If some some abortions have been chilled,” Alito asked later — making a fact sound like a hypothetical — was there any way to figure out if it was because providers were worried about the bounty-hunter law or because they were worried about retroactive attacks “if Roe or Casey is altered?”

Alito’s uncharacteristically euphemistic part about “altering” decades of legal understanding of abortion rights sounded less like a hypothetical than a threat.

The Texas Abortion Ban Could Lose at the Supreme Court