Courts

Is This How Abortion Goes Out? Not With A Bang, But A Whimper

It's a dark time for those who care about reproductive freedom.

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(Photo by ANNA GASSOT/AFP/Getty Images)

The Supreme Court’s shadow docket — a concept you barely even cover in law school, mind you — is going to be the death of us all. Or at least American democracy. Well, it’s been a 240+ year run and I suppose nothing lasts forever.

Anyway, for the last 18 hours or so, legal Twitter has been abuzz with news of the Court’s shadow docket. After Texas passed the infuriating SB8, which would ban abortions after 6 weeks and empower private citizens to sue anyone they believe helped procure one, the Fifth Circuit put the kibosh on oral arguments that put the law on track to go into effect tomorrow, September 1st. As described by SCOTUSblog:

On Aug. 25, the district court denied the defendants’ motion to dismiss. The defendants appealed quickly to the U.S. Court of Appeals for the 5th Circuit, also asking that court to stop other proceedings in the district court, including a hearing on the challengers’ request for a preliminary injunction, which had been scheduled for Aug. 30. The 5th Circuit granted the defendants’ request to put the district court proceedings on hold and denied the challengers’ request to expedite the appeal, prompting the challengers to come to the Supreme Court on Monday.

So, yeah, now it’s up to the Supreme Court, and the infamous shadow docket:

And folks aren’t super optimistic:

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https://twitter.com/LeahLitman/status/1432683686026043406?s=20

With good reason. This is the Court that is widely anticipated to gut reproductive freedom this Term — they granted review to a case challenging the Mississippi law that banned abortion after 15 weeks. As Slate’s Dahlia Lithwick and Mark Joseph Stern describe, a simple I prefer not to from the Court is an easy decision for those whose mission it is to destroy reproductive freedom:

If you’re asking yourself why the Supreme Court would possibly allow the state of Texas to overturn decades of precedent following Roe v. Wade before the court itself decides the issue, the answer seems simple: Whyever wouldn’t they? The current court’s conservative majority always planned to leave the husk of Roe in place, while allowing the states to strangle the fundamentals of the ruling. It was, as we have stressed, probably never going to pen the words “Roe v. Wade is overturned,” triggering a national culture war around the composition of the court and more awkward talk of possible court expansion. If the six conservative justices were seeking to avoid writing an opinion announcing that states can ban abortion once again, this case hands them a sterling opportunity: They can allow states to ban abortion without writing an opinion at all.

Ruling against the Texas plaintiffs’ request for relief, and doing so under the cloak of an emergency order, on the shadow docket, in a case that purports to be about federalism and states’ rights? This is the stuff an anti-abortion jurist’s dreams are made of. If the high court simply decides not to decide the fate of SB 8, in an unsigned, unreasoned two-sentence order over the summer recess, who’s going to pay attention? Texas wants to ban all abortions. The Supreme Court wants Texas to ban all abortions. In the most cynical sense, the decision to do nothing at all here is a win for everyone.

Of course, the Supreme Court could do something about it, I just wouldn’t hold my breath right about now:

“They could intervene if they worked really hard. College students pull all-nighters. I imagine justices can too,” said Melissa Murray, a law professor at New York University and reproductive policy expert.

Time is of the essence, she added. If the law takes effect, even temporarily, it could decimate the Texas abortion landscape,

“Once it goes into effect, that means clinics shut down, even if this law is declared later unconstitutional,” Murray said

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But there is a glimmer of hope for women’s health advocates. Earlier today, the Travis County District Court granted TROs in multiple lawsuits that were sought, not against the state, but against the individuals granted the right under SB8 to enforce the law:

Of course, with the intention to narrowly write the TROs, it is very fair to say we are in uncharted areas right now:

Not that this may matter. As Professor Murray noted, as the legal wrangling goes on, abortion providers may have to shut their doors, leaving Texan women with far fewer options. And, really, that is the ultimate goal of SB8.

UPDATE: As anticipated the Supreme Court did not respond to the emergency petition. SB8 is now the law in Texas.

Kathryn Rubino is a Senior Editor at Above the Law, host of The Jabot podcast, and co-host of Thinking Like A Lawyer. AtL tipsters are the best, so please connect with her. Feel free to email her with any tips, questions, or comments and follow her on Twitter (@Kathryn1).

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