The justices have yet to explain their thinking. In fact, they didn’t even issue a ruling. Instead, they allowed a midnight deadline to pass without responding to an emergency request filed by abortion providers to block the law. The justices left that request on the table and the law went into effect.
Some supporters of abortion rights held out hope on Wednesday that they could still win at the Supreme Court and that the justices were taking their time to weed through the complexities of the case. That is still a possibility, as the court may not feel it has to heed a legislature’s deadline.
But as things stand, the act of inaction by the 6-3 conservative majority court sent extremely strong signals not only about the future of Roe v. Wade, but about abortion jurisprudence going forward. And it also allowed a ban on abortion before most women know they are pregnant to go into force.
While the justices were silent Wednesday, key conservatives such as Justice Clarence Thomas have not been shy in the past to vociferously express their opinion on the court’s abortion docket. In 2019, Thomas, who has publicly said Roe was wrongly decided, declared that abortion jurisprudence has “spiraled out of control.” And last year Justice Neil Gorsuch did not mince his words about the court and abortion: “We have lost our way.”
With Thomas, Gorsuch, Chief Justice John Roberts and Justices Samuel Alito, Brett Kavanaugh and Amy Coney Barrett likely poised to curb abortion rights in the near future, the court’s three liberals, Elena Kagan, Sonia Sotomayor and Stephen Breyer are left fighting in dissent.
Why Texas matters for Roe
To be sure, by allowing the deadline to pass, the justices weren’t ruling on the merits of the Texas law and they didn’t directly overrule Roe.
Instead, they were looking at one case with tangled procedural issues concerning whether a particular set of defendants could be sued. Because it was an emergency application, there were truncated briefs and no opportunity for oral arguments or a reasoned opinion.
Legal experts refer to that as the court’s “shadow docket,” where the court — through its action (or inaction) — can take big steps without explanation.
“The courts inaction is not a determination that the six-week ban is constitutional,” said Steve Vladeck, CNN Supreme Court analyst and professor at the University of Texas School of Law. “These kinds of emergency disputes are not a conclusive resolution of the merits of a case.”
But Vladeck concedes that the shadow docket can have “substantive effects even when they come down on procedural grounds.”
Elizabeth Wydra, who heads the progressive Constitutional Accountability Center, said it was “outrageous that the court did not step in to block this clearly unconstitutional restriction.”
“We will push the court to address the case on the merits and let people across the country know whether or not Roe will continue or not to be the law of the land,” she added. Still, supporters of abortion rights know that even though the court didn’t rule on the merits Tuesday night, it sent a strong signal about where it’s going.
That’s because in considering how to rule in the case, the justices consider many factors. One of them is whether the clinics would ultimately win on the merits. There is a world where if the majority were convinced that the clinics had a chance to prevail, it might have blocked the law, casting aside procedural irregularities. And indeed that could still happen.
But supporters of abortion rights are well aware that the court is now comprised of three appointees of former President Donald Trump, who vowed to appoint “pro-life” judges.
Mississippi test coming this term
Until this week, the attention on the court and abortion was on the challenge to Mississippi’s 15-week ban, which represents a direct challenge to Roe. It will be decided after a full round of briefing, a flurry of friend of the court filings and oral arguments, likely by next summer.
And the Texas case could impact that decision as well. Here’s why.
What separated the Texas lawsuit from others is that opponents of abortion in red states got creative in their decades-long attempt to overturn Supreme Court precedent. In a novel legal strategy, they crafted the Texas law in a way that would make it almost impossible to challenge before it goes into effect. That’s because, under normal circumstances, when a challenge is brought to an abortion law, supporters of abortion rights can bring suit against a state official such as a prosecutor or health department employee.
But this law prevents government officials from directly enforcing the ban. Critics say that was done on purpose to try to insulate the dispute from federal court review.
Instead, the law allows private citizens — anywhere in the country — to bring civil suits against anyone who assists a pregnant person seeking an abortion in violation of the ban. That would include someone who transported a patient to a clinic, potentially. Or someone who agreed to pay for another person’s abortion.
Once the justices allowed the Texas ban to go into effect, it was a ringing victory for its supporters, who pointed to the fact that clinics in the state said they wouldn’t violate the law, thus halting most abortions in the Lone Star State.
Which means, if the law remains in effect, other states opposed to abortion will try to pass similar laws to broaden the reach.
So by the time the Supreme Court rules in the Mississippi case, the terrain could be different with abortions effectively banned in some states. A conservative justice reluctant to overturn precedent may not have to take such a big step of wiping Roe off the books. The states will have effectively done so with the novel statute.