By Kenneth Tiven in Washington
Recent Supreme Court of the United States decisions involving an abortion prevention law passed by Texas Republicans is having all the effects that its originators desired:
1. By limiting abortions to the first weeks, when many women are not aware they are pregnant, the ban makes abortions all but impossible for women there.
2. Forcing the Supreme Court to admit that American states have ways around the US Constitution.
3. Putting ultra-conservative Justices Samuel Alito and Clarence Thomas in the driver’s seat means that any carefully moderated positions from Chief Justice John Roberts no longer dominate.
In the broadest sense, this Texas law, SB 8, has successfully declared war on more than women’s rights, empowering a new aggressive conservative court majority, with its biggest victim appearing to be the Chief Justice.
In the 5-4 decision, he was joined by the remaining three liberal justices. He notes,
“Texas has passed a law banning abortions after roughly six weeks of pregnancy. That law is contrary to this Court’s decisions in Roe v. Wade and Planned Parenthood of Southeastern Pa. v. Casey. It has had the effect of denying the exercise of what we have held is a right protected under the Federal Constitution.”
He describes Texas’ enforcement mechanisms as “an array of stratagems, designed to shield its unconstitutional law from judicial review.” The chief justice’s dissent warns: The clear purpose and actual effect of SB 8 has been to nullify this Court’s rulings.
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It is, however, a basic principle that the Constitution is the “fundamental and paramount law of the nation,” and “[i]t is emphatically the province and duty of the judicial department to say what the law is.” Indeed, “[i]f the legislatures of the several states may, at will, annul the judgments of the courts of the United States, and destroy the rights acquired under those judgments, the constitution itself becomes a solemn mockery.” The nature of the federal right infringed does not matter; it is the role of the Supreme Court in our constitutional system that is at stake.
As the Court released its opinions on the two Texas cases around SB 8—the vigilante bill that allows anyone to collect $10,000 bounties against suspected abortion providers—it wasn’t clear what had happened. The court did allow the plaintiff abortion providers to continue to try to bring suits against a handful of state licensing officials tasked with helping to implement the six-week ban, but it declined to enjoin the law, which has prevented virtually any abortions in Texas after six weeks since September 1 and makes no exceptions in cases of rape and incest.
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As was the case in the very first shadow docket order that allowed SB 8 to go into effect, despite abundant evidence that it was materially harming pregnant people and clearly violated Roe v. Wade. In a 5-4 vote the court is behaving as though there is nothing unusual about the Texas scheme. Chief Justice Roberts had over three months to change a single mind on the conservative flank of the court. He failed to do so.
Writing for those five justices, Neil Gorsuch lays out myriad stumbling blocks and problems with the abortion providers’ theory before granting them very limited relief against four state licensing officials who have some authority to enforce SB 8.
Roberts’ entire judicial experience in government legal roles and on courts has made him very smooth on difficult issues, aware of the concern for institutional legitimacy or even, in fact, institutional supremacy. In contrast amiable Brett Kavanaugh and a youthful Amy Coney Barrett are in thrall of the senior jurists and not likely to pump the brakes on the most radical elements of the Federalist Society’s pet projects. If red states want to go ahead and choke off federally protected rights, they have been given the comprehensive road map. We will certainly see red states do precisely this.
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