Law loses its power when it goes unenforced, and the Supreme Court’s inaction has now raised the question of whether Roe v. Wade can still be considered the law.
Since 1973, when the Supreme Court decided that case, obtaining an abortion prior to viability of the fetus (consistently recognized as 20 to 22 weeks) has been considered a constitutional right even as many states have worked assiduously since then to limit that right, an effort that accelerated this year as more abortion restrictions had already been enacted by June than in any year since 1973.
This has already been called “the Worst Legislative Year Ever for U.S. Abortion Rights,” and it’s poised to get much worse.
Those fighting to protect the rights of women under Roe v. Wade have been filing lawsuits challenging restrictive anti-abortion laws, and cautiously eyeing a Supreme Court with a 6-to-3 conservative majority, including justices who have indicated that they are open to overturning Roe v. Wade, as these lawsuits move through the court system. Earlier this summer, the Supreme Court agreed to hear Jackson Women’s Health Organization v. Dobbs, which would allow the court to decide whether all pre-viability prohibitions on elective abortions are unconstitutional. Jackson Women’s Health was understood to be the first case where the Supreme Court would make a decision regarding abortion rights since Justice Ruth Bader Ginsburg died a year ago.
But the Supreme Court’s inaction on Whole Woman’s Health v. Jackson, based on a suspect procedural legal argument, functionally overturns Roe for the women of Texas, and raises questions about what comes next for all Americans. That case is about SB 8, a sinister and unique abortion restriction law that took effect on Sept. 1 after Texas passed it in May, leading to outcry, including the viral commencement speech of Texas high school valedictorian Paxton Smith, who swapped out her approved speech to speak out against the dehumanizing impact of the law.
SB 8 prohibits virtually any abortion after the sixth week of pregnancy, at which point most women do not even know that they are pregnant, since a missed period occurs at the fourth week of pregnancy. And SB 8 also creates a right of action for private citizens—whether or not they have any connection to the person receiving an abortion—to sue abortion providers, or anyone who “aids and abets” the abortion. People who sue abortion providers can be awarded at least $10,000 and attorneys’ fees if they are successful in proving that an abortion has been performed, and the abortion clinic where the procedure was performed must be shut down.
By empowering any American to file a lawsuit against abortion clinics, as well as the individuals—including receptionists and volunteers—who work in them or supposedly aid and abet them, SB 8 creates unsustainable legal and financial risk for abortion clinics to continue functioning in Texas. The fee-shifting elements of the law are unusual as well, creating risk for lawyers who raise any challenges to a “law that regulates or restricts abortion” in Texas, even if that law is unrelated to SB 8.
Unable to sue the state of Texas to stop the law, abortion rights advocates instead sought an injunction in federal court to prevent the law from going into effect. In July, advocates argued that SB 8 violates individuals’ due process rights to abortion, denies equal protection to abortion providers, encourages arbitrary and discriminatory enforcement and limits freedom of speech by creating liability for those who “aid or abet” abortion (including by providing public education regarding abortion rights), and is preempted by federal law.
U.S. District Court Judge Robert Pittman temporarily enjoined the law, pending a full hearing that had been scheduled to take place on Aug. 30, 2021. Instead, last Friday, the 5th Circuit took the unusual step of vacating Judge Pittman’s ruling and cancelling the hearing, preventing the court from making a decision on the law until after it was scheduled to go into effect. Without the ability to be heard in federal court prior to SB 8 going into effect, advocates submitted an emergency application to the Supreme Court, requesting an injunction. The Supreme Court did not respond to this application, allowing SB 8 to go into effect on Sept. 1, 2021.
The Supreme Court effectively offered no explanation for its decision not to enjoin SB 8, which is unconstitutional on its face, from going into effect. The court’s inaction leaves SB 8 as the law of Texas, and abortion providers in Texas have already stopped providing abortion services. The approximately 7 million women of reproductive age in Texas now must travel long distances to receive abortions, if they can navigate the already arduous restrictions in nearby states.
Although Roe v. Wade is still technically legal precedent, with SB 8’s enactment Texans can no longer receive its protections. President Biden released a statement saying that SB 8 violates the constitutional right established under Roe v. Wade, and pledging to “protect and defend that right.” But in a few months, the justices are likely to explicitly overturn Roe. Until then, states that are hostile to abortion have been provided a road map for how to evade the law, and we are likely to see more states passing legislation modeled after SB 8. Without a federal law codifying the right to abortion, and with the current conservative-majority Supreme Court, it is not clear how Biden will protect these rights.
Advocates are continuing to encourage states that are not hostile to abortion rights to codify Roe v. Wade, networks continue to fundraise for women to travel and receive abortions, and providers are working to figure out how else to provide solutions for women without the rights to abortion, including “missed period pills,” which would not require that someone learn they are pregnant prior to medically ending a pregnancy.
For now, abortion restrictions have won the day in Texas as Americans left to wonder what will come next and abortion rights advocates are mobilized for action to protect a woman’s ever more precarious right to choose.
