When it comes to abortion rights in the United States, activists and courts aren’t facing a fight—they’re embroiled in a war.
On Aug. 30, Texas abortion providers fighting a so-called “heartbeat” abortion ban, Senate Bill 8, banning abortions after six weeks of pregnancy, applied to the U.S. Supreme Court for emergency injunctive relief—a stay of the law—in what’s known in legal terms as Whole Women’s Health v. Jackson. The Court waited 24 hours to respond, its passivity allowing the law to take effect. Only then did the conservative majority formally deny the providers’ plea for intervention and relief. The result is the latest demonstration of how the right-wing justices are weaponizing the “shadow docket,” a mechanism through which the Supreme Court issues expedited rulings without explanation or transparency.
Little more than a month later, on Oct. 2, thousands of people across the U.S. marched for abortion rights—on the Supreme Court, in Washington, on the State Capitol in Texas and in 658 other demonstrations nationwide. There’s no overstating—or overreacting to—the Court’s September deviation from precedent and its implications for women and LGBTQ2S+ people.
Just days later, the Department of Justice’s separate attack on the law, filed Sept. 9, yielded a major victory. In a 113-page opinion, U.S. District Judge Robert Pitman of the Western District of Texas issued a preliminary injunction that blocks Senate Bill 8—and, moreover, rejects Texas’ request for a stay of the injunction. Texas is certain to appeal Pitman’s ruling to the typically conservative Fifth Circuit. Depending on that Court’s schedule and ruling, the justices could soon face an order that presents greater obstacles than Aug. 30’s application for a stay.
Four Whole Women’s Health clinics were able to resume providing abortion care Thursday following Pitman’s late-Wednesday ruling. Others are waiting, anticipating the appeal.
Senate Bill 8 violates both 1973’s Roe v. Wade, establishing a constitutional right to an abortion pre-viability, and 1992’s Planned Parenthood v. Casey, affirming that right. Six weeks into a pregnancy, many people have not yet realized they are pregnant. And, of course, the concept of a “fetal heartbeat” as used by these legislators is deeply misleading. At six weeks, pregnant people carry embryos; only at about 10 weeks do heartbeats become audible. That’s one reason unconstitutional limits exactly like those in Texas have been struck down more than a dozen times across the U.S. since 2013.
It’s not the first time that attacks on abortion—and the jurists who sustain them—have relied on pseudo-medical terms as a way to legitimize opposition to reproductive care. Physicians perform late-term abortions, not “partial birth abortions.” The latter is not a legal or medical term nor is it used by medical professionals, yet it’s stuck around after being popularized by far-right elected officials, media and anti-abortion activists.
The Texas law’s second provision is at least as concerning: it excludes the state and its officials from enforcement in an effort to limit judicial review. Instead, the law empowers private citizens to sue abortion providers, patients and those who assist them in civil court. The penalty for providing or exercising abortion rights? At least USD$10,000 per defendant.
Though a new tactic in the reproductive rights arena, legislators may have been inspired to substitute citizen enforcement for state involvement by a lower court ruling allowing an anti-LGBTQ2S+ law to go into effect in Mississippi. That law, the Religious Liberty Accommodations Act, licenses public discrimination against LGBTQ2S+ people and, like the Texas law, grants members of the public the right to sue anyone who interferes. More than that, it invites the public to discriminate by listing sanctioned actions, recounts litigator Alexia Korberg, who fought the law. “Landlords can evict gay and trans renters. Businesses can refuse service to LGBTQ people. Doctors and nurses can decline to treat LGBTQ people. It goes on and on. The law also permits and protects ‘expressive conduct’—vitriol and harassment.”
Although Texas’ Mississippi-informed anti-abortion law technically took effect at midnight Sept. 1, it had already effectively ended abortion access in the state. Clinic closures mean the end of reproductive care, including everything from contraception to cancer screening, as well as the only sources of gender-affirming care and hormone treatments for some Texans. Emmett Schelling, executive director of the Transgender Education Network of Texas, said affected Planned Parenthood clinics have been “critical in filling gaps in care for transgender people in the state”—for people of all genders. Meanwhile the Texas Supreme Court refuses to hear Planned Parenthood’s arguments against Senate Bill 8 in state court.
This is precisely the America that Donald Trump and the Republican Party promised over the last three U.S. election cycles—2016, 2018 and 2020. The party and then-leader Trump first leaned heavily on the promise of an ultra-conservative federal judiciary, emphasizing the importance of the Supreme Court, then on their record of success in that realm. And with good reason: altogether, the former president and his allies confirmed three Supreme Court justices and more than 200 other Article III judges during Trump’s single term in office—28 percent of the federal judiciary.
The conservative takeover of the courts was decades in the making. Trump’s reliance on the Federalist Society and impresario Leonard Leo was anything but secret. The Federalist Society, though, is simply the most prestigious and presentable of a network of right-wing groups formed to nurture, advance and assist in the confirmation of conservative jurists that is sustained by “dark money,” anonymous donations. Most of Trump’s judges are unusually young for lifetime appointments—a fact Trump’s White House touted. Many, especially at the appellate level, sport credentials like prestigious clerkships with conservative judges or justices considered prerequisites for ascension. That was Leo’s doing. Trump’s picks, after all, also included a record number of unqualified candidates, not simply biasing but debasing the judiciary for a generation.
Following conservative Justice Antonin Scalia’s death in 2016, one of his clerks told me that he remembered the jurist as “a combatant, but a happy one.” Scalia was famously close with liberal lion Justice Ruth Bader Ginsburg. Alas, when Ginsburg died in September 2020, Trump leaped to replace her with an unabashedly political pick—Amy Coney Barrett, just three years into her first judicial appointment, also courtesy Trump.
I have clerked for two Republican-appointed federal appellate judges and know others, and there’s a difference between Trump’s high court picks and their predecessors. One passed-over Trump SCOTUS short-lister put their responsibility as a judge to me as “trying to get it right.” Trump’s favoured appointees, by contrast, are animated by a grim mix of ideology and partisanship.
It was never a question of whether but rather when and how the Supreme Court’s conservative majority would restrict reproductive choice—not just the choice to terminate a pregnancy but the prerogative to prevent one. That Justices Clarence Thomas, Samuel Alito, Neil Gorsuch, Brett Kavanaugh and Amy Coney Barrett would back an attack on abortion rights is not surprising. That they would do so without Chief Justice John Roberts’ blessing, relying on procedure rather than substance, is.
Roberts’ concern for his legacy and lip service to the doctrine of stare decisis—the requirement that courts hew to precedent—have until now curbed more overt attacks on choice. After all, the Court could have taken action to limit if not end abortion rights via June Medical Services v. Russo, a Louisiana case decided in June 2020. But doing so would require flagrantly reversing precedent. As recently as 2016 in Whole Woman’s Health v. Hellerstedt, the Court struck down a near-identical law. In that case, the chief justice supplied the then-quartet of liberal justices with a fifth vote. But, ever cagey, Roberts limited his agreement to the judgment, or outcome, and only as a matter of precedent.
Similarly, Roberts’ dissent from the majority’s denial of the application for a stay of the Texas law in this most recent case, Whole Women’s Health v. Jackson, focuses on the novelty of the law and faults the applicant providers for failing to answer imbricated, unprecedented legal questions. It’s only the three liberals’ dissents—one each from Justices Stephen Breyer, Sonia Sotomayor and Elena Kagan—that spell out how significantly the majority has departed from protocol and how unconstitutional the ban is.
Breyer, Kagan and Sotomayor each join the others’ dissents. It is the female justices whose dissents land most directly. Kagan warns, “Today’s ruling illustrates just how far the Court’s shadow-docket decisions may depart from the usual principles of appellate process.” Indeed, the conservative wing has already decided major human rights and pandemic-related cases this term using this tactic, which allows them to make significant rulings without explanations, signatures or even a vote breakdown. Relying on shadow-docket decisions, Kagan writes, “every day becomes more unreasoned, inconsistent and impossible to defend.”
For her part, Justice Sotomayor’s dissents—her outspokenness in what might otherwise have been a vacuum with the loss of Ginsburg—have become her signature. This one does not disappoint but bears quoting: “Taken together, the Act is a breathtaking act of defiance—of the Constitution, of this Court’s precedents, and of the rights of [people] seeking abortions throughout Texas.”
In 2020, both Justices Gorsuch and Roberts voted to extend Title VII of the Civil Rights Act of 1964 to include protections based on sexual orientation and gender identity in Bostock v. Clayton County. Would they have voted that way had Coney Barrett been confirmed already? How will they vote going forward? There’s safety in numbers in any body governed by majorities and so much more still at stake. The protections stemming from Bostock apply only to employment.
The majority’s response to the emergency application for a stay in Whole Women’s Health v. Jackson advertises an emboldened conservative wing willing to part ways with Roberts and to use non-traditional mechanisms to achieve desired results. It serves as an invitation to organizations like the Alliance Defending Freedom (ADF), an anti-LGBTQ2S+ legal training and advocacy organization designated a hate group by the Southern Poverty Law Center, to bring cases that will, if not reverse then revise the limited federal protections LGBTQ2S+ people have. The Court has already teed up the perfect concept: “religious liberty.” Taken far from First Amendment roots, as seen in Mississippi’s anti-LGBTQ2S+ law, this phrase is a catch-all for affirmative discrimination against others on the basis of religion in contexts ranging from contraception to sexual orientation and gender identity.
Look no farther than last term’s Fulton v. Philadelphia for an example of how the right to “religious liberty” can be distorted to serve as a license to discriminate. In that case, Catholic Social Services (CSS) challenged Philadelphia’s refusal to contract with CSS on the basis of its refusal to certify same-sex parents for foster care services. Justice Alito’s concurrence, joined by Justices Clarence Thomas and Gorsuch, reads as a roadmap or, perhaps, a wish list.
The Court’s procedural pass on Texas’ law is a trial balloon. Perhaps it’s a one-off, giving Republican officials time to survey the political landscape before the Court tackles the merits. It could also be a dodge. After all, the Court will hear a direct challenge to Roe v. Wade—which, incidentally, was decided 7-2 in 1973—on Dec. 1 in Dobbs v. Jackson Women’s Health Organization. And the disarray could reflect strategic disputes among the justices. The Court could end access to abortion without overturning Roe. For example, all six conservatives might agree on enlarging loopholes for targeted regulation of abortion providers laws (known by the acronym TRAP) and developing new notions of what constitutes an “undue burden” on abortion access, the legal standard for determining whether a limiting law can stand.
With a 6-3 majority, Roberts could not block the radicalization of the Court even if he wanted to—and he likely doesn’t. The perception that the Chief Justice is more moderate than his more overtly conservative colleagues has proven shaky at best. Not in the least because of the numbers: Roberts voted with Kavanaugh 94 percent of the time during the October 2020 term; that’s just one point of agreement higher than Justices Breyer, Sotomayor and Kagan’s rate of accord. Following Justice Ginsburg’s passing and Coney Barrett’s appointment in time for the October 2020 term, these numbers will only become more revealing.
Even in his putative dissent in Whole Women’s Health v. Jackson, Roberts does not so much as touch on the merits or constitutionality of the law nor does he grapple with the doctrine of state action, another fatal flaw of Senate Bill 8. Put simply, tasking state courts with enforcing federally unconstitutional state laws on behalf of private citizens doesn’t make those laws any more constitutional. Though the high court dodged the issue in its initial refusal to stay the bill, Judge Pittman’s ruling and DOJ’s arguments present the issue too squarely for any honourable jurist to support the law without razing precedent. If Roberts does indeed hold a deep concern for stare decisis and its attendant quality—integrity—it’s past time to prove it.
Correction: October 8, 2021 2:23 pmThis story has been updated to correct the date of a judicial stay.