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The Supreme Court last week allowed a new law in Texas to go into effect that bans nearly all abortions after about six weeks of pregnancy, a stage when many women don’t yet know they are pregnant.
A number of other conservative states have passed similarly restrictive laws in recent years only to see them knocked down by the Supreme Court for violating rights established in Roe v. Wade and a later ruling, Planned Parenthood v. Casey, which clarified restrictions states can place on abortions. But the authors of the new Texas law, known as S.B. 8, utilized a novel legal strategy to keep it in place — at least for now.
Rather than have state officials enforce the six-week abortion ban, as other rejected laws have done, S.B. 8 allows private citizens to sue abortion providers or anyone who “aids or abets” them. The law has had a similar effect as a government-enforced ban — abortion providers have stopped performing the procedure after six weeks out of fear of being sued — but the citizen enforcement mechanism has created a legal gray area that convinced five of the court’s conservative justices that it was not their place to intervene.
In a one-paragraph, unsigned order, the court emphasized that it was not ruling on whether S.B. 8 was constitutional, only that the “complex and novel” procedural questions presented by the law meant the court didn’t have grounds to block it from going into effect.
Why there’s debate
S.B. 8 is clearly a major pivot point in the fight over abortion that has been waged since Roe v. Wade was decided nearly 50 years ago. But there’s a lot of debate over what it represents for the future of reproductive rights in the U.S.
Many legal experts and pro-abortion-rights advocates say the Supreme Court’s decision to allow S.B. 8 to go into effect is a clear signal that, though still technically intact, the abortion protections established by Roe and Casey are functionally gone in large swaths of the country. S.B. 8’s method of getting around limits on abortion restrictions appears likely to serve as a model for similar laws in other Republican-led states.
The justices may eventually be asked to rule on the constitutionality of the citizen-enforced abortion restrictions, but left-leaning court watchers say the new conservative majority may jump at the chance to chip away at Roe without actually overturning it. Some also argue that, as important as it is in the short term, the Texas law may ultimately prove to be a footnote in history if the court takes the opportunity to fully repeal Roe in the near future.
Others say it’s very likely that S.B. 8 will be knocked down once the high court considers it on the merits. Some political analysts also believe the law could backfire by invigorating the pro-abortion-rights movement and turning voters against the GOP. That shift could give Democrats in Congress the numbers they need to codify abortion rights into law or change the makeup of the Supreme Court — something that seems unlikely in the currently divided Senate.
The Justice Department on Thursday filed a lawsuit asking a federal judge to declare the S.B. 8 invalid. Abortion providers in Texas are also pursuing a variety of strategies to push back on S.B. 8, including court challenges that could potentially lead to a more direct ruling on its constitutionality. Later this year, the Supreme Court will hear arguments on Dobbs v. Jackson Women’s Health Organization, a case that represents a direct challenge to Roe.
Roe v. Wade is already functionally gone
“Republican legislators in multiple states are already drafting copycat laws, and in weeks we could be in what is essentially a post-Roe world, in which abortion is legal in blue states and all but outlawed in red states. By the time the Supreme Court finally overturns Roe in its upcoming session, it will merely be ratifying the on-the-ground reality it just created.” — Paul Waldman, Washington Post
Similar abortion bans will soon become the norm in Republican-led states
“If Texas can avoid a court order blocking its anti-abortion law by delegating enforcement of the law to private bounty hunters, so can any other state. Indeed, nothing in the Court’s order prevents another state from passing a law banning all abortions — provided that the law is enforced using SB 8-style private lawsuits.” — Ian Millhiser, Vox
The Supreme Court has signaled it will overturn Roe when it gets the chance
“Let’s not kid ourselves. The Supreme Court of the United States, now dominated by religious conservatives who have signaled again and again that they detest the 1973 decision that legalized female agency, is itching to erase it, stare decisis be damned. Or, in lay terms, precedent schmecedent.” — Robin Abcarian, Los Angeles Times
Texas’s law is likely to survive any legal challenges
“Relying on individual activists to flood the courts with lawsuits might seem riskier for anti-abortion-rights lawmakers ... than an outright ban, but the opposite is true. Texas designed its bill to make it nearly impossible to challenge in court.” — Mary Ziegler, Atlantic
Democrats don’t have the votes to defend abortion rights through legislation
“Divisions within their party in Washington — and broad Republican opposition to abortion rights — all but ensure Democrats won’t have the votes to enact new legislation to protect abortion access and send it to President Joe Biden’s desk.” — Clare Foran, CNN
S.B. 8 will be mostly irrelevant once the court rules on Dobbs v. Jackson Women’s Health Organization
“The real challenge to Casey will come this fall. ... Court watchers all believe that there are now at least five votes to change how undue burden is defined, create a new standard altogether, or reject the constitutional right to an abortion and leave it up to states as to whether and how they want to restrict abortion access.” — Sarah Isgur, Politico
S.B. 8 will get knocked down once the Supreme Court considers its merits
“My suspicion is that at least one of the Supreme Court’s conservatives, probably Justice Neil Gorsuch, will join Chief Justice John Roberts and the three liberal justices to overturn the law once an actual suit is brought before it.” — Bret Stephens, New York Times
Backlash to S.B. 8 could invigorate the push for federal abortion rights protections
“Texas Republicans have handed Democrats a political grenade to hurt the anti-abortion cause. ... Democrats are already having a field day with the Texas law.” — Editorial, Wall Street Journal
Overturning Roe may be a step too far for conservative justices
“Roe v. Wade has been precedent for almost 50 years now, right? To change a precedent of that long standing, around which people have organized and relied upon, is a big thing for the court to do and is very rarely done unless there’s a good reason for it.” — Renée Landers, Suffolk University Law School professor, to Boston Globe
It’s impossible to know what abortion rights in the U.S. will look like a few years from now
“Few people in 1973 understood the ways in which Roe would warp our constitutional system. Few people today can predict the fallout from either the Texas law or a potential reversal of Roe next summer — much less all of the events, scandals, and crises that will unfold in the coming year.” — Matthew Continetti, National Review
Ending the judiciary’s dominance over abortion laws would be good for the country
“The question isn’t only under what conditions abortion should be permitted. It is who decides. By shifting authority from legislatures to the courts, Roe transformed a moral and political disagreement into a judicial one. The judicialization of abortion has perverse consequences.” — Samuel Goldman, The Week
Political pressure is too great for Democrats to let S.B. 8 stand
“I don’t care if Biden has to move to Texas and perform abortions himself. ... This is an attack on the constitutional rights of women, Biden’s constituents, and he and his administration must act. So don’t ask me what the Democrats can do, because they can do a lot. The only question is what the Democrats are willing to do. What they are prepared to do. What they are ready to risk doing to uphold and defend their principles. The answer better not be ‘nothing.’” — Elie Mystal, The Nation
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