Supreme indifference: The Texas case shows how the court handles abortion
September 1, 2021
Mary Ziegler is a professor of law at Florida State University and author of Abortion and the law in the United States: Rowe v. Wade to date.
Since the decision Family Planning Case in Southeastern Pennsylvania v. Casey In 1992, the sign of the Supreme Court’s case was that it took the issue of abortion seriously. Casey And subsequent decisions affirmed the constitutional right to obtain an abortion before the fetus survived, but these decisions also spent time on the importance of national interests to protect the life of the fetus and even the dignity of the fetus’s life. At the same time, the court also talked about women’s freedom, equal citizenship and dignity. Trying to balance deep-rooted beliefs about abortion may not be the job of the courts, and it is impossible to achieve a balance that satisfies everyone. But there is something to say about understanding the fundamental importance of abortion issues-for those whose lives touch so deeply and the social movements that make abortion a core part of our country’s politics.
On Monday, the court faced an urgent application from an abortion provider in Texas to prevent the state from functionally banning abortions in the state. SB 8Texas laws have added new wrinkles to the so-called “heartbeat laws,” which have become standard fares in conservative states. Although most of these states criminalize abortion when doctors can detect fetal heart activity (usually around the sixth week of pregnancy), Texas emphasizes that no state official can enforce its ban. Instead, the state outsourced this work to ordinary citizens—anyone in the state can sue an abortion provider who violated the prohibition, get at least $10,000 in damages, and demand a court order to prevent the doctor from doing so again. The goal is to avoid court rulings that prevent enforcement of the law before the law goes into effect (and avoid the high attorney fees that other states with heartbeat laws pay to defend against these pre-enforcement lawsuits).under Unilaterally young, Plaintiffs can seek injunctions against officials responsible for enforcing laws that may be unconstitutional, but Texas is doing its best to argue that no one can sue. (The provider argues that state judges — who will hear lawsuits against abortion providers under SB 8 — will enforce the Texas injunction and can therefore be prosecuted in advance.)
As of Wednesday afternoon, the court had been hearing the emergency application for several hours without saying a word.The silence of the judges allowed the Texas law to take effect; abortion providers in the state have Already announced They will stop executing the program after six weeks.
In some ways, the court’s inaction can only tell us a lot about Rowe v. Wade with Casey, Judges will consider in this upcoming term Dobbs v. Jackson Women’s Health Organization, In the case of Mississippi state law, which prohibits most abortions after 15 weeks.Although Texas is trying to avoid roe with Casey Through its private enforcement program, the Mississippi case will almost force the judge to overturn or change the court’s most important abortion precedent.Mississippi bans many abortions before surviving–surviving outside the womb is possible–despite the fact roe with Casey The right to choose abortion before viability is not allowed to cause unnecessary burdens.In order to uphold the laws of Mississippi, the court will have to overturn roe Complete or announce the termination of viability as a restriction on abortion bans. The Texas case does not require the same drastic changes, especially considering the emergency stance it takes in court.Lower courts support a narrower law that allows prosecutions against abortion providers, while claiming to be enforced roe with Casey (U.S. Court of Appeals for the Fifth Circuit, in Oak Paloby v Foster, Is the most prominent example). The judges may not have responded to the Texas supplier’s urgent application — or may simply believe that the supplier cannot sue the state judge who has been dragged into court.
In addition, the best opportunity for supporters of abortion rights is to rely on precedent. Chief Justice John Roberts elaborated on the importance of staring at the decision last year when he voted to remove abortion restrictions in Louisiana. June Medical Services v. Russo. Judges Brett Kavanaugh and Amy Coney Barrett spoke in detail about respect for precedent during their confirmation hearing.Reversing roe with Casey Will subvert the jurisprudence of nearly half a century. Allowing SB 8 to take effect does not clearly contradict precedent-or subject the court to strong opposition.Siding with Mississippi Dobbs The view that next June will definitely be closely watched seems risky. The law in Texas is allowed to take effect through midnight inaction without a court hearing, not so much.
But the court’s willingness to allow Texas to functionally prohibit abortion sent a powerful message.Justice Already shown them Can respond quickly Emergency application when the spirit touches them. It is possible that one or more justices are writing a lengthy objection to explain the waiting here. Similarly, the silence of the court seemed to mark a fundamental break with the judge’s long-standing respect for both sides of the abortion issue. Not saying a word indicates that there is no emergency-the dramatic changes in abortion laws in one of the largest states in the United States are not particularly significant. Americans who oppose abortion will celebrate the Texas law as a key step in protecting America’s most vulnerable people.Supporters of abortion rights mourn that the court has effectively revoked roe Say nothing. It seems that only the justices themselves think this matter is not worthy of comment.
The silence of the court cannot tell us whether the court will overturn roe It will be disclosed in June this year or in a subsequent decision.The inaction on the urgent application does not reveal how the court’s new 6-3 conservative majority views the precedent; nor is it certain whether Roberts has committed to June Medical Will persevere (or will Barrett persevere, he is in June Medical Is passed down and will share that promise).But the events of the past 24 hours did raise questions about whether the court will intervene Dobbs As the traditionally defined situation, it is.
The membership of the Supreme Court has changed, but the severity of the abortion problem has not changed. Dobbs Give the judge a second chance to show that they have not forgotten.