Acting just before midnight last night, a deeply divided Supreme Court allowed Texas to continue enforcing the nation’s strictest ban on abortions – even as the majority insisted that it was not upholding the ban’s constitutionality. The majority said it had doubts that the Court had the power at this stage to stop the law, because of procedural complexities.
In practical terms, the 5-to-4 order – not a final decision — means that most clinics in the state will stop performing almost all abortions. Indeed, some clinics already had stopped the procedures after the law went into effect early Wednesday morning and as the Supreme Court remained silent throughout the day.
Second, the order also means that the challenged state law will remain in effect at least several more days, and maybe for several weeks. The next move appears to be up to a federal appeals court with authority to act on Texas cases, and that court already has refused to expedite the clinics’ challenge to the law’s validity.
As a result of these stunning developments, pregnant women in Texas seeking abortions will have to travel to other states, or carry their pregnancies to term and give birth. The law bans all abortions after six weeks of pregnancy – the point at which a fetal heartbeat could be detected by a doctor. Many women do not even realize that they are pregnant that early in their term.
The Court’s action was the most significant setback for abortion rights in the nearly five decades that those rights have existed under the Roe v. Wade ruling of 1973. And it was an ominous sign that, perhaps, the Roe ruling may be closer than ever before to being overruled by the Court.
Until this order emerged, it had been the standing constitutional doctrine that states could not ban abortions until the fetus could survive outside the womb if delivered – a point not reached until the 23rd or 24th week of pregnancy. (The Supreme Court, already in its new term, will be considering the constitutionality of another Texas law which seeks to ban all abortions after 15 weeks of pregnancy. That case is not yet set for a hearing.)
In political terms, Wednesday night’s over was a sweeping (even if temporary) victory for President Donald Trump’s strategy of choosing strong foes of abortion as Supreme Court Justices. All three of his conservative appointees were in the majority, voting along with the Court’s two most conservative Justices. Chief Justice John G. Roberts, Jr., usually quite conservative, joined the Court’s three liberal Justices in dissent. Each dissenter wrote a separate opinion, with some of them accusing the majority of abusing the Court’s customary processes.
On the other side of the political spectrum, Democrats in control of Congress will be under increasing pressure to attempt to add new seats to the Court, to attempt to neutralize the power of the conservative majority. Any such effort, however, would have to draw at least 60 votes in the Senate to overcome an almost certain Republican filibuster. The Republican Party, in general, has long opposed abortion rights.
The core of the majority’s reasoning last night was that it was not clear how the law was going to be enforced (because the law gives enforcement powers to private individuals instead of state and local government officials), whether federal courts could order state courts how to handle enforcement cases (because of legal immunity questions), and whether the lawsuit in the form filed actually challenged the law (because of uncertainty about who might seek to enforce the law). These complications, the majority said, were “complex and novel.”
The majority thus concluded that the clinics that had sued had not made their case that they were entitled to even a temporary or emergency order to stop the law from being carried out.
The majority said that the clinics had “raised serious questions” about the new law’s constitutionality.
The dissenters, in various ways, argued that the law was plainly unconstitutional, and that the majority was acting hastily and otherwise misusing its authority.