When Sen. Susan Collins announced her intention to vote to confirm Supreme Court Justice Brett Kavanaugh despite concerns that he would vote to overturn Roe v. Wade, she assured the American public that he respected precedent too much. Amidst her 2018 speech from the Senate floor, she included this nugget: “His views on honoring precedent would preclude attempts to do by stealth that which one has committed not to do overtly.”
Collins was wrong. That’s exactly what Justice Kavanaugh and his fellow conservative Supreme Court Justices did last night — they all but overruled Roe, and they did it completely by stealth. Overnight, the Supreme Court refused to take any action in a case out of Texas about a ban on abortion at six weeks of pregnancy, and they did so without so much as a brief order or statement. They literally did nothing.
The result is that, as of today, roughly 90% of abortions are illegal in Texas. That’s because an abortion ban at six weeks is just two weeks after a person with a regular menstrual cycle misses their first period. That’s not much time to realize you missed your period, take a pregnancy test, confirm you’re pregnant, make the decision to have an abortion, find a clinic, and then get the abortion. Add on that many people have irregular periods or spotty bleeding even if they are pregnant, and many people wouldn’t even know they’re pregnant until after the six-week period is up.
As a result, this is an extreme anti-abortion law that is now in effect in Texas. Since Roe was decided in 1973, no state has been effective in banning abortion this early in pregnancy . . . until the Supreme Court allowed Texas to do so last night.
It’s reasonable to wonder how we got here and how the Court allowed a law to go into effect that so blatantly goes against precedent. The answers to these questions can be found in two places — the 2016 election and the inventiveness of the anti-abortion movement in Texas.
First, the 2016 election. When Donald Trump beat Hillary Clinton by losing the popular vote by almost 3 million, he gained the power to appoint new Justices to the Supreme Court. Thanks to Mitch McConnell’s political maneuvering, as well as the timing of Supreme court deaths and retirements, President Trump was able to appoint three new Justices to the Supreme Court. All three — Neil Gorsuch, Brett Kavanaugh, and Amy Coney Barrett — are far-right conservative Republicans widely expected to toe the party line on most issues, in particular abortion. After all, President Trump said he would appoint Justices who would “automatically” overturn Roe, and most people (other than Susan Collins) believe he delivered on this campaign promise.
Second, the law that Texas, known as SB8, was passed earlier this year (but scheduled to take effect September 1). This law took a stunning new approach to banning abortion. Rather than allowing state officials to prosecute offenders under the law, like almost every other abortion law does, the law gives private individuals the power to sue anyone who performs or helps someone get an abortion past six weeks in Texas. The person suing doesn’t have to have any connection to the person getting an abortion: It can be the Texas patient’s boyfriend or it can be a complete stranger living in Alaska. And the universe of people who can be sued is almost endless, as the law allows lawsuits against anyone who helps the patient — such as the patient’s sister who drove her to the appointment, the clinic doctor who performed the procedure, everyone on the clinic staff who assisted the patient, the insurance company or non-profit group that helped with funding, the taxi driver who took the patient home, the friend who gave the patient the clinic’s phone number, and on and on. Each of them could be on the hook for $10,000 for the patient’s abortion. In other words, the law puts a $10,000 bounty on the head of anyone who helps with an abortion beyond six weeks in Texas. This is a radical law that could destabilize basic aspects of the justice system far beyond abortion.
The clinics and others who help patients sued to try to stop the law, but they are hamstrung by the unique nature of SB8. Normally, when state officials enforce a law, anyone wanting to stop it sues those officials. But when a law gives any person anywhere the right to sue, suing to stop the law from ever taking effect is harder. A district court in Texas was going to hold a hearing on the law on Monday, but over the weekend, the federal appeals court that covers Texas stopped the hearing before it ever happened. The clinics filed an emergency appeal to the Supreme Court on Monday, hoping to have the Supreme Court either allow the hearing to go forward or, even better, put the law on hold while the case was being litigated. After all, the six-week abortion ban clearly violates Roe.
It is this emergency appeal that the Supreme Court had before it last night, and it is this emergency appeal that the Supreme Court just completely ignored. In doing so, the Court did exactly what Senator Collins said Justice Kavanaugh would not do — by stealth, the Court told people in Texas that Roe has minimal application there. The law thus took effect at midnight last night, and today, abortion clinics in the state have stopped providing abortion after six weeks. They are still open and providing lawful abortions in the state while also helping patients go out of state to get abortions elsewhere. Thus, abortion is still legal in Texas, but it is extremely limited within state borders, and for patients, the right is now even more difficult to access than it was beforehand.
To be clear, the Supreme Court might still rule in this case. That could happen later today, tomorrow, or sometime in the near future. (Or, it could ignore the emergency appeal and just let the case progress without ruling. The Court can do whatever it wants.) By doing nothing last night, the Court did not explicitly overrule Roe. But what it has done is give everyone a clear signal that it has no respect for the constitutional right to abortion while telegraphing what it will do with Roe when it decides the precedent’s fate in a Mississippi case to be heard later this year. Barring a big surprise, Roe is as threatened today as it ever has been.