The Supreme Court’s Stealth Attack on Abortion

The chaos is the point. Photo-Illustration: Intelligencer; Photo: GEtty Images

The Supreme Court has, as of this writing, allowed Texas to ban abortion after six weeks of pregnancy — before many people even know they’re pregnant. The Court did this in the middle of the night. They did it by doing nothing.

This was always the direction the Court was headed. When Donald Trump won the presidency after openly promising to appoint justices who would “automatically” overturn Roe v. Wade, those who warned that the future of reproductive autonomy was at stake were dismissed as Chicken Littles. But to ban abortion in the dark this way, even temporarily, exceeds their bleakest imaginings.

The law, which took effect today, not only bans abortion at six weeks’ gestation — which, practically speaking, is two weeks after a missed period — but empowers private individuals to sue anyone they believe violated it. “This law was designed to create chaos and to evade judicial review. It is creating chaos,” Stephanie Toti, senior counsel at the Lawyering Project, which represents the Texas groups that, because they help Texas patients pay for their care, could be sued for “abetting” abortion, told me this morning. “The law is undoubtedly unconstitutional. It is our hope and expectation that eventually it will be struck down.”

The justices might still act today or later this week. Maybe a dissent, or several, is in the pipeline. But for now, pregnant people in Texas — and soon, possibly, in other hostile jurisdictions that will race to follow Texas’s lead — are being denied the protection of the Constitution. Even in the most generous reading, the Supreme Court feels no particular urgency to respect their dominion over their own bodies. And even if it pauses this law for the time being, the fact that the Court agreed to consider a case on a 12-week ban out of Mississippi this fall is ominous for the future of abortion rights.

If the Court allows the Texas law to stand, it will present its own legitimacy crisis. Like many of its most controversial decisions lately, this one took place within the so-called shadow docket, which constitutes emergency petitions and orders the justices often act on quickly and with little explanation. These directives don’t command the same kind of attention as full briefings and oral argument and dozens of pages of opinions and dissents. I’ve long predicted that the Court would evade public support of abortion rights — and to be clear, the majority of Americans do support the right for the patient to decide — by trying to bore us to death with a seemingly anodyne reading of the law. It turns out, instead, that they’ve decided to confuse us with process.

The law has been written to thwart those who would try to block it in court. “What’s different about this law is the enforcement mechanism,” Toti explained. “It’s not enforced through criminal penalties or direct government action. Instead it’s enforced through private lawsuit. It incentivizes individuals to sue abortion providers under this law. It puts a bounty on the head of abortion providers. Because of the court’s technical rules around standing and jurisdiction and other procedural issues, it gives the defendants an argument that they can’t be sued in advance.”

In other words, the law presents a Catch-22. If the Court says the law can only apply when it actually gets enforced, abortion providers have to wait to violate the law and be sued by some private actor. “We don’t think it’s a winning argument,” said Toti, because the plaintiffs have argued the government is still effectively enforcing the law and can be sued. But in practice, the providers are likely unwilling to risk the financially ruinous implications of breaking the law, which could allow Texas to get away with it without any actual judicial oversight. “There is a long history of precedent saying that someone in this situation shouldn’t have to risk violating the law, that the Court should be able to step in advance,” Toti said. “But we’re at a moment in our history where all precedents are up for debate.”

How did we get here? Until now, the Court has done just enough to curb abortion rights to keep rage at a low ebb among everyone but the most engaged, lulling the rest of the public into complacency. Anthony Kennedy’s decision to retire gave Trump the opportunity to replace the begrudging and agonized protector of abortion’s technical legality. Ruth Bader Ginsburg’s death weeks before the 2020 election dashed the slim hope that Chief Justice John Roberts would slow down the inevitable out of concerns for the Court’s legitimacy, as he did when he effectively sided with abortion rights in the spring of 2020.

To undermine a near-half-century of precedent in the middle of the night is particularly odd because it undermines the highest court’s own power to let the lower courts, in this case the Fifth Circuit Court of Appeals, do the dirty work. “After all, the Court has usually been pretty protective of its own prerogatives; that is, it has liked to be the only entity that could alter its own rulings,” University of Michigan law professor Margo Schlanger wrote in an email. “But Justice Kennedy was the most attached to that approach – and if abortion is murder (as several of the justices probably think), then some justices may view the 5th Circuit as a little eager, but admirably so, and not want to swat it down.”

It’s now a matter of when, not if, the Court will rob people in red states of what’s left of their right to end a pregnancy, and much more would have to change than a presidential commission on court reform to stop it.

Today, Texas clinics are still open for the estimated 15 percent of patients who happen to be in the earliest weeks of their pregnancies and know they need an abortion, the ACLU’s Brigitte Amiri told me. But this, too, is a convoluted process. Texas has a mandatory 24-hour waiting period for abortion, and the clock starts with an in-office consultation. Undoubtedly, even those who still can legally get an abortion are confused about what all of this means. To paraphrase Adam Serwer, today, the chaos is the point.

The Supreme Court’s Stealth Attack on Abortion