On Wednesday, the Supreme Court utilized the “shadow docket” to allow Texas to implement the most restrictive abortion law in the U.S. The law bans abortions past six weeks of pregnancy, even in cases of rape or incest, and includes provisions to sue those who provide or support those receiving the procedure after a fetal heartbeat is detectable.
“Five members of this court decided to allow this law to go into effect through silence.” - Melissa Murray, NYU School of Law
Critics and many legal experts say the Texas law is fundamentally unconstitutional under Roe v. Wade and Planned Parenthood v. Casey. Because of the unusual circumstances surrounding this ruling, what does this mean for reproductive rights outside of Texas? And is this just the beginning of deputizing private citizens in order to thwart the Constitution?
Listen: A dangerous future for reproductive rights
Melissa Murray is a professor at New York University Law and host of the Strict Scrutiny podcast. She says the Texas abortion law clearly violates the Constitution. “The substantive component of SB 8 prohibits abortion at six weeks of pregnancy. The six week deadline is in contradiction with the SCOTUS precedent,” she says. ”This six week ban on its face is unconstitutional.”
Murray says the Supreme Court would normally hold a hearing for this case, but the use of the shadow docket enabled an unconstitutional decision. “Five members of this court decided to allow this law to go into effect through silence,” she says. ”And with that decision on Wednesday night they credited this calloused procedural move that will encourage other states to do the same.” Murray says in order for Texas to pass an unconstitutional law, lawmakers found a loophole which stripped the state of its power to enforce it, instead deputizing private citizens. “There’s a substantial financial incentive to enforce this law,” Murray notes. ”The procedural quirks made it hard to figure out if it should be in federal court to be adjudicated.”
Dr. Sarah Wallett is chief medical officer of Planned Parenthood of Michigan. She says while there’s no current threat of a similar restrictive abortion law in Michigan, it opens a door for that possibility. “The Texas ruling itself doesn’t have an impact on Michigan, but it shines a spotlight on what’s at risk in Michigan,” she says. ”These last few days have been very hard. I’m mad we are playing politics with the basic healthcare rights of pregnant people.”
Wallett says despite stigma and misconceptions around abortion, the procedure is essential healthcare. “Most people who have abortions are already parents, they understand deeply what it means to be pregnant or have a child,” she says, “It’s not an argument about ideals. This is a real life concrete thing for many people in Michigan. Those of us who work for Planned Parenthood see that everyday. The threat is very real. And I want to reassure everyone that abortion is still legal in Michigan.”
Dahlia Lithwick covers courts and law for Slate. She says with a 5-4 conservative majority, it was a personal motivation that drove the ruling. “In a strange sense the subtext of what happened in court over the last year… is that it stopped being the Roberts court and started being the Kavanaugh court.”
Lithwick says this is not how SCOTUS usually operates, which is why conservative Chief Justice John Roberts sided with the liberals. “Roberts’ dissent is not a pro-abortion dissent. It says it’s unseemly and improper to decide a case like this.” She says the law effectively isolates and subjugates women. “Your husband, your boyfriend, the person in your family who is molesting you now has immense leverage over you and the people who want to support you… This hearkens back to the Fugitive Slave Act.”