Wednesday night, after many people on the East Coast had already gone to sleep, the Supreme Court issued a one-paragraph order that told Texas it could ban almost all abortions in the state. In a mere twelve sentences, the Court dealt a near-deathblow to the most contentious right in constitutional law and politics over the last half century — the right to access to abortion.
No, officially Roe v. Wade hasn’t yet been overruled. But, for almost 85% of abortion patients in Texas, that right to abortion, in practical terms, no longer exists. Because now, the new law that effectively bans abortion after six weeks in pregnancy has received the blessing of the highest court in the land.
To recap: earlier this year, Texas passed a law banning abortions after 6 weeks, but did so in a completely novel way — not by saying anyone who performs one can be criminally prosecuted, but rather by saying that anyone who performs one or who helps in the performance of one can be sued for $10,000. That’s not how law usually works, but Texas wrote the law this way to insulate the law from challenge in federal court.
And that’s exactly what the Supreme Court majority said last night. Basically, the Court said because there are no state officials involved with enforcing the law, the lawsuit the clinics brought against the state to try to stop the law was brought against the wrong people. The 5-4 Court majority, in an unsigned opinion, agreed that the law presented “serious questions” that are “complex and novel.” But, the Court basically concluded, these questions are so serious, so complex, and so novel, that the Court just can’t answer them now. So, let the law take effect and the Court will wait for “other procedurally proper challenges” to the law, whenever they come.
So who’s going to bring those challenges? That’s the tricky legal question everyone is now trying to figure out. There is still a federal court case pending. The case is now before the Fifth Circuit Court of Appeals, the federal appeals court that covers Texas. That court is one of the most conservative in the country, and the only issue before it is a procedural matter. In theory, this case could ultimately lead to blocking SB8, but that’s highly unlikely for two reasons. First, the Fifth Circuit hates abortion rights more than the Supreme Court does. And second, the Supreme Court gave the Fifth Circuit a very clear signal yesterday that this case is not properly in federal court.
So that leaves a challenge to SB8 in Texas state court. This is tricky in its own right. All reports now indicate that abortion clinics in Texas are complying with the law and not providing abortions after 6 weeks. They are doing this because they don’t want to be sued under the law. However, the result of complying is that no one will sue them for violating the law. And if no one sues them for violating the law, there’s no lawsuit for them to raise, as a defense, that the law is unconstitutional. Thus, because the clinics are complying, the law stays in effect with no challenge. It’s a Catch-22 of the worst kind.
But, if that changes and there is a lawsuit against someone providing or assisting with an abortion, that person can defend against the lawsuit by saying that SB8 is unconstitutional. That argument is rock solid. Under Roe v. Wade, states cannot ban abortion before viability, which is roughly 24 weeks of pregnancy. SB8 bans abortion at 6 weeks, so the law is unconstitutional. The logic is indisputable … for now.
Why “for now”? Because challenges in lawsuits take some time, both to be originally decided and to be appealed. While this hypothetical lawsuit is being considered and appealed (first to the Texas appellate courts, then possibly to the U.S. Supreme Court), the Supreme Court will be considering and deciding a Mississippi abortion case that could result in overturning Roe. And if that happens, the constitutional challenge to SB8 will fail. Texas courts might still find some other Texas-law problem with the bill, but given how conservative the Texas Supreme Court is, that’s hard to imagine.
In other words, barring a surprising turn of events at the Fifth Circuit, a lighting quick decision in an as-yet-unfiled state lawsuit, or a new federal case with a compelling novel theory of how to get this law reviewed now, SB8 is here to stay for the foreseeable future.
And if that’s not depressing enough for abortion rights supporters, don’t look now, but Florida might enact a law similar to Texas’ very soon, and other states are sure to follow. In other words, this is the new world we’re living in, with an ultra-conservative Supreme Court caring little about people’s right to bodily autonomy and self-determination.