In a midnight decision, five Supreme Court justices began the process of ending abortion rights in the United States. The fact that this development did not get the attention it deserved is attributable at least in part to the fact that, instead of hearing oral arguments, taking months to write opinions, and then rendering a decision, the Supreme Court used its “shadow docket”—a secretive process by which they have been making increasingly consequential decisions without the customary amount of transparency and established procedure.
The Texas law SB 8 allows anyone to sue an individual for providing abortion care or assisting someone with getting an abortion when they are more than six weeks pregnant. Successful suits generate a bounty of $10,000. After the Fifth Circuit upheld the law, Whole Woman’s Health and other plaintiffs asked the Supreme Court to block it. Five justices declined to do so, and so the law took effect on September 1.
There are so many horrifying aspects to this that it’s hard to know where to start. First of all: There are Texans seeking abortions right now who can’t get them. Forcing people to give birth when they don’t want to increases their risk of death and a host of other poor outcomes, and it’s just plain wrong. The people most harmed by this law are those who want abortions and can’t get them. Also, many people will have to travel out of state—missing work, foregoing rent payments or other necessities, struggling to find childcare, and increasing their exposure to COVID-19—in order to get care. Those who suffer the most will disproportionately be those already marginalized, including Black women and those with low incomes. And, because this law is so evil, those who face these obstacles will do so without the same kind of support they have been able to count on in the past.
I don’t use the word “evil” lightly, but it’s warranted here. The Texas law circumvents the usual channels that advocates use to block laws that infringe on reproductive autonomy by creating a problematic enforcement mechanism: rather than relying on state officials or the courts to enforce an abortion ban, they encourage individuals to bring suits against anyone they suspect of being involved in helping a pregnant person obtain an abortion. Those who bring the lawsuits might fail, but the defendants can’t recoup legal costs—but if the defendants lose, they will have to pay the plaintiffs’ legal costs as well as the $10,000 bounty. This kind of structure encourages abortion opponents to use the lawsuits to harass health care providers as well as caring community members, who can face enormous financial and psychological costs.
UC Irvine law professor and ACLU Executive Committee member Michele Goodwin points out that this law echoes the Fugitive Slave Act, a particularly shameful part of US history:
[The Texas law] hearkens back to the Fugitive Slave Act, which provided for citizen participation in the preservation of American slavery. It deputized citizens to surveil, to stalk, to apprehend people who were in violation of U.S. laws by escaping themselves out of the inhumane condition of slavery. There were bounties that were provided for their success in surveilling and successfully apprehending individuals who dared to exercise liberty, autonomy, and freedom.
When you think about this Texas law, there are certain analogs that eerily resemble that of the Fugitive Slave Act in that it provides for financial remuneration of those citizens who are able to successfully peg someone who has aided or abetted an individual in obtaining an abortion. What this means with the law written in such broad terms is that it could implicate the Uber driver, the Lyft driver, the bus driver, the receptionist who works at an abortion clinic, virtually anybody who has been in the path of a person exercising the constitutional right to terminate a pregnancy. It is a very dangerous law.
The Six-Week Limit
Marquette professor Michelle Rodrigues explains that the rationale for the six-week limit is spurious: abortion opponents claim that a fetal heartbeat is detectable at six weeks, but in fact what’s happening is that a blood vessel is pulsing. “But at this early stage, the embryo is still in the process of differentiating organs and won’t be classified as a ‘fetus’ until about a month later,” she writes. And because of how pregnancies are dated, the six weeks isn’t measured from the date of conception, but from the last menstrual period. Plus, pregnancy tests often can’t detect pregnancies right away. So, even someone with a predictable 28-day cycle has maybe one week to realize they’re pregnant and obtain an abortion before the six-week limit. And because Texas has already passed so many laws that make abortion inaccessible, those without substantial resources are unlikely to be able to do so in that short window.
Before SB 8, 85-90% of abortion procedures in Texas happened after the sixth week of pregnancy. Even that small percentage is likely to dwindle as abortion clinics are forced to shut down because the law won’t let them offer abortions after six weeks. This is not to suggest that the law would be acceptable if the gestational limit were later; no government should force anyone to carry any pregnancy to term against their will, period. But any supporter of the law who suggests that it still allows people to get abortions is making a misleading claim.
An Indefensible SCOTUS Response
The refusal of five Supreme Court justices to block this law—and they weren’t even asked to overturn it, just to prevent it from taking effect in advance of a full hearing—only makes sense if you consider them as political actors bent on denying reproductive autonomy rather than interpreters of the Constitution. Their rationale of “complex and novel antecedent procedural questions” preventing the Court from blocking the law was extremely thin and at odds with recent actions. “After months spent rewriting the court’s own rules by awarding themselves the power to intervene in cases that present all manner of ‘novel’ legal questions—including COVID restrictions and the eviction moratorium—the conservative majority decided it was powerless to halt a direct attack on Roe,” writes Slate’s Mark Joseph Stern. Even Chief Justice John Roberts, who laid the groundwork for erosion of abortion rights in his June Medical Services v. Russo opinion, thought the Court should block the law “so that the courts may consider whether a state can avoid responsibility for its laws in such a manner.” I have no doubt that if a state passed a law allowing any person to file a lawsuit against anyone who helps an employer endanger a worker’s life, these five justices would block it. Justice Sonia Sotomayor summarized the problem in her dissent:
Presented with an application to enjoin a flagrantly unconstitutional law engineered to prohibit women from exercising their constitutional rights and evade judicial scrutiny, a majority of justices have opted to bury their heads in the sand.
Last night, the court silently acquiesced in a state’s enactment of a law that flouts nearly 50 years of federal precedents. Today, the court belatedly explains that it declined to grant relief because of procedural complexities of the state’s own invention. Because the court’s failure to act rewards tactics designed to avoid judicial review and inflicts significant harm on the applicants and on women seeking abortions in Texas, I dissent.
The Supreme Court is already scheduled to hear oral arguments in Dobbs v. Jackson Women’s Health Organization, which challenges Mississippi’s 15-week ban on abortion. Many of us fear that the Court, now that it contains three Trump-appointed justices, will use this opportunity to overturn the abortion protections that Roe v. Wade established nearly five decades ago. With this decision, they have achieved similar ends without attracting the kind of headlines that such a major decision would generate. The 22 states that were just waiting for Roe to fall in order to ban abortion now have a blueprint for achieving those ends without waiting for the Supreme Court. In Forbes, Alison Durkee reports, “Lawmakers in states including Florida, North Dakota, Mississippi, Arkansas, South Dakota and Indiana have signaled their intentions to try and pass similar bills.”
Some of those seeking abortions in Texas are already crossing state lines to get care, which will put even more pressure on their personal finances and on the abortion funds that support people who can’t afford the abortions they’re seeking. Some will obtain abortion drugs (mifepristone and misoprostol) to self-manage their abortions; these drugs are approved for pregnancies of up to 12 weeks, and sites such as Plan C and We Testify offer information about using them safely. (Updated 9/7 to specify: The World Health Organization gives a 12-week cutoff; FDA approval of the mifepristone + misoprostol protocol is only for 10 weeks). As We Testify founder Renee Bracey Sherman points out, the image of a rusty coathanger is no longer a good symbol for abortion in an era of draconian restrictions, because abortion pills are the common method for abortions not sanctioned by law:
Illegal doesn’t mean unsafe — it just means subject to criminalisation. Black and brown people are the majority of abortion patients in the US and any criminalisation hurts us first. We know this, because it’s been happening for years.
Medication abortion — or abortion via pills — now accounts for more than one-third of all terminations. Such an option allows people to have an abortion on their own terms and in the comfort of their own homes. It’s not only safe but it proved critical during the Covid-19 pandemic when travel to healthcare settings wasn’t an option. While medication abortion has always been over-regulated, the pandemic gave a glimpse as to what could be possible.
Restrictions on medication abortion have mounted as the method has gained popularity, so Bracey Sherman urges political leaders to offer a plan for full decriminalization of abortion, including self-managed care. One long-overdue step that FDA should take is to remove unwarranted restrictions on mifepristone, which has an excellent safety profile (the agency announced a review of the restrictions back in May).
The Women’s Health Protection Act would establish a statutory right for the provision and receipt of abortion care free from unnecessary restrictions. House Speaker Nancy Pelosi has announced that the House will vote on the Act, and this would be a terrific opportunity for the Senate to scrap the filibuster and start passing legislation that would actually fix some of the urgent public health threats that face our nation, from abortion restrictions to climate change. President Biden has announced a “whole-of government effort … to see what steps the Federal Government can take to ensure that women in Texas have access to safe and legal abortions as protected by Roe, and what legal tools we have to insulate women and providers from the impact of Texas’ bizarre scheme of outsourced enforcement to private parties.” The Nation’s Elie Mystal has some creative suggestions for what the federal government can do. And it seems like it’s time for Supreme Court reforms.