SCOTUS Could De Facto Overturn Roe v. Wade Tomorrow. What Just Happened?

Under a new law in Texas called S.B. 8, signed into law by Governor Abbott on May 19, abortions are now banned in that state after a “fetal heartbeat” is detected at around six weeks. The law contains no exception for rape or incest, making it among the most restrictive abortion laws now on the books and pitting it directly against Roe v. Wade, which, together with Planned Parenthood v. Casey, set the bar at viability outside of the mother or up to around 24 weeks. In addition, S.B. 8 contains a disturbing “vigilante” provision that deputizes private citizens to sue health care providers or even other individuals if they “knowingly” help a person seeking an abortion and grants plaintiffs up to $10,000 in damages if they prevail. The law is so broad that it could include, for example, any person who so much as drives a woman to an abortion clinic.

S.B. 8 is set to go into effect on Wednesday of this week, but supporters of abortion rights had sued to stop it, arguing that it would effectively outlaw abortions for around 85% of Texas abortion patients and force many of the few remaining clinics to close. The District Court had set a hearing for Monday and denied the state’s motion to dismiss the suit, but a panel of the Fifth Circuit Court of Appeals unexpectedly issued a broad order canceling the hearing and denying an emergency petition from clinics to block the law from taking effect. The ruling, if left unchanged, means S.B. 8 will go into force on Wednesday.

That move by the appellate panel forced abortion rights advocates to seek intervention of the U.S. Supreme Court to stop the law from taking effect while the merits of it are litigated. On Monday, they filed an emergency application with Justice Samuel Alito, often considered the most conservative member of the Court, who oversees such emergency applications in the Fifth Circuit. Alito ordered defendants to submit papers later today; he has the power to singularly grant or deny the application, but in most high-profile cases the matter is referred to the entire Court for consideration. As of this writing, it isn’t clear what course this case will take.

If allowed to stand, the law “would immediately and catastrophically reduce abortion access in Texas,” wrote Planned Parenthood, the Center for Reproductive Rights, the ACLU, as well as abortion providers in their application. “Patients who can scrape together resources will be forced to attempt to leave the state to obtain an abortion, and many will be delayed until later in pregnancy. The remaining Texans who need an abortion will be forced to remain pregnant against their will or to attempt to end their pregnancies without medical supervision.”

Because enforcement of the law here isn’t by the state but instead by private citizens, its proponents urge a unique argument that it isn’t actually unconstitutional. The defendants argue that plaintiffs may challenge the constitutionality of the law only by first violating it and then raising their objections as defenses. Indeed, taking state officials out of the enforcement equation makes it difficult to know even who to sue to stop the law. The providers had to name, among others, every state trial court judge and county court clerk in Texas, and they argued that S.B. 8 was merely an end-run around an established constitutional right because it “attempts to replace normal civil-litigation rules and clearly established federal constitutional rules with distorted versions designed to maximize the abusive and harassing nature of the lawsuits and to make them impossible to fairly defend against.”

The unusual procedural history of this case, with the unexpected stay of proceedings by the Fifth Circuit, has pushed the case up to the top of the Supreme Court’s abortion rights cases, for now eclipsing the Court’s planned consideration this fall of a ban passed in Mississippi that had outlawed abortion after 15 weeks. The application from abortion rights groups in Texas has asked the Court to either issue an injunction to halt the law from going into effect on Wednesday or to vacate all the lower courts’ stays of proceedings in order to permit the District Court to decide whether an injunction should issue.

While it isn’t at all clear what Alito or the Supreme Court will do, there are a few considerations they must be weighing. First, it is likely that SCOTUS ultimately will be reviewing the case no matter which way it comes out, so maintaining the status quo in Texas (and enjoining the law from taking effect) would be the normal and proper course. Similar laws in around a dozen states are “on the books” but not in effect while the Court toys with overruling Roe v. Wade. Abortion rights advocates argue that SCOTUS doesn’t actually need to consider the case on its merits now in order to simply hit pause and prevent a potentially unconstitutional law from going into effect.

Second, this term the Court already intends to look at Mississippi’s ban, which is less harsh, and they likely don’t appreciate having to rule “on the merits” in another case in any way without a full and proper record and hearing. To them, the Texas case would seem jammed through. 

Finally, the Texas law contains unique and problematic issues around private citizen enforcement of public health policy that render it a bad candidate for setting precedent. Cynically speaking, if you’re going to overturn Roe v. Wade, this is not the case or the way to do it.

Against those considerations is the fact that Alito is the justice holding the fate of this case in his hands right now, and he has been waiting a very long time to strike a death blow at Roe v. Wade. By doing nothing but deny the emergency application, he could let the chaos play out and act as if SCOTUS simply declined to weigh in at this time, or that the unique nature of the cleverly crafted law meant the case was not yet ripe for the Court’s consideration because no one had yet violated it.

And that would be highly disingenuous but not terribly surprising from him.