We’re back! Hope everyone had a good August, as untroubled as possible by the absolute torrent of news.
Legal observers and reproductive rights activists stayed up late tonight watching the so-called shadow docket to see how the court would handle an emergency application to prevent SB 8, an anti-abortion law in Texas that was enacted in May of this year from coming into force at midnight Central Time (1 a.m. ET).
We waited in vain. As of this writing, the Supreme Court has not issued any decision on the emergency application. (Of course, the Court was not required to rule before the midnight central time deadline. It may issue its decision at any time, including after I hit send on this. I can recall one time when a dissent by Justice Ginsberg took so long to prepare that the court’s decision wasn’t posted until 5 a.m.)
The law represents the harshest restriction on abortion since Roe v. Wade was decided in 1973. It bans most abortions after the sixth week of pregnancy, including the most common form of second trimester abortion, and ominously, it authorizes private third parties to enforce its provisions by civil suit. In effect, it raises the prospect that abortion providers might be repeatedly dragged into court by anti-abortion activists. Most observers agree that, if the Supreme Court faithfully applied its constitutional rules against abortion bans established by Roe and against any “undue burden” on obtaining an abortion established by Planned Parenthood v. Casey in 1992, it would hold the Texas law to be unconstitutional.
For that reason, you’ll likely see some commentators write that the Court has effectively overruled Roe and/or Casey by not acting tonight. I think that’s going a bit too far, and I’ll explain why—though it’s likely to be cold comfort. Roe and Casey remain on the books; they can’t be erased by silence. If someone is able to bring a facial challenge to SB 8 some day (a big if, because the law appears designed to make it hard for anyone to have standing), then a district court faithfully applying Roe and Casey could strike the law down. Of course, that possibility is complicated by the fact that the district court would have the Fifth Circuit’s contrary holding to contend with. But as long as the Supreme Court stays silent on Roe and Casey, the law’s defenders could have to go through the appeals process again.
More to come as this case continues to develop.
Update: An earlier version of this post cited a local news report from KRIS News that indicated a Texas County Court had stayed the law from going into effect despite the Supreme Court’s inaction, and quoting one of the litigants saying the same thing. That report has been disputed and appears to be incorrect; the order only restrains certain parties from suing the person who sought the injunction; it does not block the whole statute from taking effect.
Correction: The SB 8 at issue in the case before the Supreme Court was enacted in 2021, not 2017 as previously stated. A separate Texas law, also known SB 8, and also dealing with abortion restrictions, was passed in 2017, enjoined by a district court in a case featuring almost the same parties, and that injunction was recently reversed by the Fifth Circuit. Apologies for the confusion, which I hope is somewhat understandable.