Is the Texas Decision Abortion’s Last Rodeo?

On Wednesday, September 1, at 12:01 a.m., Texas’s dystopian new abortion ban kicked in. On Wednesday, September 1, at 12:01 a.m., we also functionally said good-bye to Roe v. Wade. The Supreme Court let stand Texas’s six-week abortion ban, a ban that also comes with a healthy dose of vigilante-style enforcement. 

Now, the Supreme Court didn’t need to take this particular case to overrule the central doctrines of Roe. It’s got a perfectly good—as in perfectly horrible—opportunity to do so in the upcoming term when it hears arguments about Mississippi’s 15-week ban. But undoing Roe in the dead of night, doing so without a word, was just icing on the cake for this Supreme Court, a court wholly designed to get rid of abortion.

After close to 24 hours of the ban already being in effect, the Supreme Court finally got around to issuing an opinion late Wednesday night and … let the ban go into effect. If this Court intended to be unusually cruel in the way this was handled, they’ve succeeded. 

The Court first signaled their intent to gut Roe by doing nothing at all before 12:01 a.m. on Wednesday. By refusing to rule on the request from Whole Women’s Health and other clinics in Texas to block the law from taking effect, the Court, effectively, ruled that it could. In doing so, it ruled that a law that utterly ignores the central holding of Roe was just fine—which means Roe is gone.

However, to understand why Roe is gone, we have to understand how we got here and how there has been a decades-long and largely successful attempt by anti-abortion activists to unwind the principles that Roe put in place. 

The core portion of Roe that has remained over the last 50-plus years of anti-abortion activists trying to dismantle the law was the concept of viability. Viability is a fairly easy-to-understand concept, legally. Until a fetus can survive outside the womb, it isn’t viable. That’s a central tenet of Roe—that abortion must be legal until fetal viability is reached. 

Though anti-abortion activists would have you believe otherwise, viability is also a fairly easy-to-understand concept, medically. Medical experts agree that survival outside the womb is near-impossible before the 24-week mark. That’s why activists were so concerned when the Court agreed to hear the Mississippi case: It showed this Court was open to considering whether that state’s 15-week ban was permissible. With that, it revealed this Court was open to considering throwing out Roe entirely. 

Fifteen-week bans like Mississippi’s turn on trying to get courts to agree that it should use the amorphous concept of “fetal pain,” arguing that fetuses can feel pain at the 15-week mark. Except that isn’t true either. Medical experts agree that fetuses don’t feel pain until that 24-week viability mark. 

Texas didn’t even try to adhere to the quasi-medical fictions other states try to hang their hats on. Instead, it passed a so-called “fetal heartbeat” ban, saying abortions are forbidden after a heartbeat can be detected. In reality, that ends up being around six weeks—a point at which many people do not yet know they’re pregnant. 

Now, even Texas couldn’t say a fetus was viable at six weeks. So instead it relied upon another core Supreme Court principle regarding abortion: that of undue burden. States can’t pass laws that unduly burden the right to get an abortion. In the past, that’s meant that laws like mandatory spousal notification provisions and hospital admitting privileges were struck down, because they made it unduly difficult for people to get abortions and provided no real benefit to the states who passed those laws. 

Texas took that idea and ran with it all the way to the Supreme Court, arguing with a straight face that their six-week ban wasn’t an undue burden because checking for a fetal heartbeat isn’t an undue burden. That may be true but neatly skips over the fact that if a fetal heartbeat is detected, the person can’t get an abortion. 

It cannot be stressed enough: This is a shell game. It doesn’t really matter how abortion advocates couch their arguments. It doesn’t matter what medical science says. States like Texas will just use brute force again and again and again to figure out a way to win here. 

Texas even figured out a way to get around being sued for passing a law such as this. The Texas law creates a private right of enforcement and bars a public one. What that means is that the state doesn’t enforce the six-week ban—private individuals do. So, says Texas, you can’t sue the state because they’re not the ones who will be stopping you from getting an abortion or penalizing you if you do. The law outsources that job to any anti-abortion in Texas, who can sue anyone who performs an abortion past the six-week mark or who “aids and abets” someone who gets an abortion, which can include driving someone to a clinic. 

Those vigilantes get $10,000 from anyone they successfully sue, and they get their attorney fees paid on top of that. If you successfully defend yourself from such a suit? You get nothing, and the vigilantes don’t have to pay your attorney fees either. 

Now, this is such a preposterous idea that even Chief Justice John Roberts, no friend to abortion rights, dissented from the Court’s other five conservatives. While the majority simply shrugged at the notion that it is a criminally bad idea just to let anti-abortion activists collect bounties, Roberts called Texas out, saying the purpose of that “appears to be to insulate the state from responsibility for implementing and enforcing the regulatory regime.” Roberts also took a swipe at the Court for considering this for only two days and without consideration by lower courts. However, Roberts’s real concern here seems to be procedural—he doesn’t like how this came about—rather than substantive. He’s made very clear he’s just fine with any number of abortion restrictions. 

Justices Breyer and Kagan also filed dissents, but once again, it fell to Justice Sonia Sotomayor, the realest justice on the bench, to provide the words we need:

“The Court’s order is stunning. 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.”

Justice Sotomayor also said that the Texas law “is a breathtaking act of defiance—of the Constitution, of this Court’s precedents, and of the rights of women seeking abortions throughout Texas.”

She’s right. The majority didn’t just let people who need abortions down. It let us all down. 

Of course, don’t sleep on Justice Elena Kagan, who called this Court’s bad habit of deciding major issues in the shadows, without oral argument or lower court rulings, “unreasoned, inconsistent, and impossible to defend.”

The Court has signaled to other conservative states that Texas has found the secret to success. Don’t ban abortion outright. Instead, just create a situation where it is nearly impossible to get an abortion, but insist that as long as someone, somewhere, might still be able to get an abortion, it isn’t an undue burden. Then, farm out enforcement of the law to the most virulent anti-choicers in your state and declare you can’t possibly be sued because you’re not the entity causing any harm. Given that Texas often leads the way in anti-abortion efforts, it’s not unlikely that many of the 21 states already considered hostile to abortion will adopt similar laws. 

This latest development doesn’t leave us with a lot of options. Of course, people should donate to abortion funds, particularly those providing care in states where anti-abortion laws are ascendant. Direct people to Plan C, which helps people get the drugs used in medication abortions.

But really, the only option left, the only play we’ve got here, is to pack the Supreme Court. Only by upsetting that lockstep-conservative majority, a majority attained by putting a sexual-assault enthusiast and a religious zealot on the Court for just that reason, can these laws be stopped. But to pack the Court, we have to first kill the filibuster. Real change can’t happen as long as the Senate requires a supermajority of 60 votes to get anything done. Legislators need to hear from their constituents, now more than ever, if there’s any hope of keeping choice safe.