Supreme indifference: What the Texas case signals about the court’s treatment of abortion
on Sep 1, 2021 at 3:28 pm
Mary Ziegler is a law professor at Florida State University and the author of Abortion and the Law in America: Roe v. Wade to the Present.
Since the decision of Planned Parenthood of Southeastern Pennsylvania v. Casey in 1992, the hallmark of the Supreme Court’s jurisprudence has been an effort to take the abortion issue seriously. Casey and subsequent decisions affirmed the constitutional right to obtain an abortion before the point of fetal viability, but those decisions also spent time on the importance of the state’s interest in protecting fetal life and even the dignity of fetal life. At the same time, the court has spoken about women’s liberty, equal citizenship, and dignity. Trying to balance deeply held beliefs about abortion might not be the court’s job, and it is impossible to strike a balance that satisfies everyone. But there is something to be said about understanding the fundamental importance of the abortion issue — for the people whose lives it so deeply touches and for the social movements that have made the abortion cause such a central part of our national politics.
Given the court’s handling of Whole Woman’s Health v. Jackson, the respect and evenhandedness that defined Casey and its progeny might be a thing of the past.
On Monday, the court was confronted with an emergency application from Texas abortion providers seeking to prevent that state from functionally banning abortions in the state. S.B. 8, the Texas law, added a new wrinkle to the so-called heartbeat laws that have become standard fare in conservative states. While most of these states criminalized abortion at the point at which physicians can detect fetal cardiac activity (usually around the sixth week of pregnancy), Texas stressed that no state official could enforce its ban. Instead, the state outsourced that job to private citizens — anyone in the state could sue an abortion provider who violated the ban, secure at least $10,000 in damages, and request a court order to stop that doctor from doing it again. The goal was to evade court rulings blocking the law’s enforcement before it took effect (and to avoid the hefty attorneys’ fees that other states with heartbeat laws have forked out to defend against those pre-enforcement lawsuits). Under Ex parte Young, plaintiffs can seek injunctions against officials who are responsible for enforcing potentially unconstitutional laws, but Texas is doing its best to argue that there is no one to sue. (Providers have argued that state judges — who will hear lawsuits against abortion providers under S.B. 8 — will enforce Texas’ ban and thus can be sued in advance.)
As of Wednesday afternoon, the court has been sitting on the emergency application for hours without saying a word. The justices’ silence has allowed Texas’ law to go into effect; abortion providers in the state have already announced that they will stop performing procedures after six weeks.
In some ways, the court’s inaction can tell us only so much about the fate of Roe v. Wade and Casey, which the justices are slated to consider this coming term in Dobbs v. Jackson Women’s Health Organization, a case about a Mississippi law that bans most abortions after 15 weeks. While Texas has tried to avoid a confrontation with Roe and Casey through its private-enforcement scheme, the Mississippi case will all but force the justices to reverse or transform the court’s most important abortion precedents. Mississippi outlaws many abortions before viability — the point at which survival is possible outside the womb — notwithstanding the fact that Roe and Casey disallow undue burdens on the right to choose abortion before viability. To uphold Mississippi’s law, the court will have to reverse Roe outright or declare an end to viability as a limit on abortion bans. The Texas case does not require the same kind of sea change, especially given the emergency posture in which it came up to the court. Lower courts have upheld narrower laws allowing for lawsuits against abortion providers while purporting to enforce Roe and Casey (the U.S. Court of Appeals for the 5th Circuit, in Okpalobi v. Foster, is the most prominent example). The justices might yet respond to the Texas providers’ emergency application — or may simply think that providers cannot sue the state judges they have hauled into court.
Besides, the best chance for supporters of abortion rights is to lean on precedent. Chief Justice John Roberts wrote at length about the importance of stare decisis in voting to strike down a Louisiana abortion restriction last year in June Medical Services v. Russo. Justices Brett Kavanaugh and Amy Coney Barrett spoke at length about respect for precedent during their confirmation hearings. Reversing Roe and Casey would upend nearly a half century of jurisprudence. Allowing S.B. 8 to go into effect does not as obviously contradict precedent — or expose the court to backlash. Siding with Mississippi in Dobbs in what is sure to be a closely watched opinion next June seems risky. Allowing Texas’ law to go into effect through inaction in the middle of a night when the court is not even in session, not so much.
But the court’s willingness to allow Texas to functionally outlaw abortions sends a powerful message. The justices have shown that they can respond quickly to emergency applications when the spirit moves them. It is possible that one or more of the justices is writing a lengthy dissent that explains the wait here. Just the same, the court’s silence seems to mark a fundamental break with the respect the justices have long shown those on either side of the abortion issue. Saying nothing suggests that there was no emergency — and that a massive shift in abortion law in one of the nation’s largest states is a matter of no particular import. Americans opposed to abortion will celebrate Texas’ law as a crucial step toward the protection of the nation’s most vulnerable. Supporters of abortion rights mourn that the court has effectively reversed Roe without saying a word. Only the justices themselves seem to think that the matter is not worthy of comment.
The court’s silence cannot tell us whether the court will reverse Roe openly this June or in a subsequent decision. Inaction on the emergency application does not reveal much about how the court’s new 6-3 conservative majority views precedent; nor does it establish whether Roberts’ commitment in June Medical will persist (or whether Barrett, who replaced the late Justice Ruth Bader Ginsburg after June Medical was handed down, will share that commitment). But the events of the past 24 hours do raise questions about whether the court will approach Dobbs as the legacy-defining case that it is.
The Supreme Court’s membership has changed, but the gravity of the abortion issue has not. Dobbs gives the justices a second chance to show that they have not forgotten.