Mary Ziegler writes:

The five justices who upheld Texas’s anti-abortion law in the middle of the night this week insisted that their hands were tied: Texas had invoked sovereign immunity, and abortion providers had not proved that the state was wrong. Above all, the majority warned people not to overreact. Women in Texas might not be able to get an abortion anymore, and abortion providers might have already shut down, but worry not. The Supreme Court had not drawn “any conclusion about the constitutionality of Texas’s law.”

For anyone paying attention, the upshot of this was clear. For starters, Texas lawmakers had not kept their intentions secret: They wanted to ban almost all abortions and skirt the consequences. The law raised “complex and novel” “procedural questions,” according to the Court majority, but only because the law’s designers had homed in on a creative strategy for achieving their goals.

That the Court pretended this wasn’t about the fate of abortion rights tells us that the justices may be ready to strike down Roe v. Wade—but are less prepared for the havoc such a decision would wreak. Reversing Roe would not be a mere part of the legacy of John Roberts’s Court and the justices sitting on it—it would define that legacy.

And it could have enormous institutional and political consequences: Court reform—which remains a matter of abstract inquiry rather than an earnest legislative push—would be more seriously on the table. Pro-abortion-rights voters in 2022 and 2024 could make their discontent known at the polls.

The justices who allowed Texas’s law to go into effect hardly seem to love the thought of that backlash. Their order tried to reassure the public by spelling out what was not being decided—and tried to signal that the Court takes all of this very seriously. And even before this particular question arose, during their confirmation hearings, Brett Kavanaugh and Amy Coney Barrett repeated that when it came to Roe, they would keep an open mind. After all, they are neutral arbiters of the law, not pre-committed ideologues.

The justices desperately want the public to believe that is true, even though similar procedural hurdles did not stop the Court from blocking COVID-19 stay-at-home orders that affected in-person worship, and even though the Court’s overnight order made a laughingstock of what is still supposedly a constitutional right. The message was clear: Texas wanted to pass a legal-consequence-free abortion ban, and the Supreme Court wanted to find a political-consequence-free way to uphold one. [Continue reading…]

In her dissent, Justice Sonia Sotomayor writes:

The Court’s order is stunning. Presented with an application to enjoin a flagrantly unconstitutional law engineered to prohibit women from exercising their constitutional rights and evade judicial scrutiny, a majority of Justices have opted to bury their heads in the sand. Last night, the Court silently acquiesced in a State’s enactment of a law that flouts nearly 50 years of federal precedents. Today, the Court belatedly explains that it declined to grant relief because of procedural complexities of the State’s own invention. Because the Court’s failure to act rewards tactics designed to avoid judicial review and inflicts significant harm on the applicants and on women seeking abortions in Texas, I dissent.

In May 2021, the Texas Legislature enacted S. B. 8 (the Act). The Act, which took effect statewide at midnight on September 1, makes it unlawful for physicians to perform abortions if they either detect cardiac activity in an embryo or fail to perform a test to detect such activity. This equates to a near-categorical ban on abortions beginning six weeks after a woman’s last menstrual period, before many women realize they are pregnant, and months before fetal viability. According to the applicants, who are abortion providers and advocates in Texas, the Act immediately prohibits care for at least 85% of Texas abortion patients and will force many abortion clinics to close.

The Act is clearly unconstitutional under existing precedents. The respondents do not even try to argue otherwise. Nor could they: No federal appellate court has upheld such a comprehensive prohibition on abortions before viability under current law.

The Texas Legislature was well aware of this binding precedent. To circumvent it, the Legislature took the extraordinary step of enlisting private citizens to do what the State could not. The Act authorizes any private citizen to file a lawsuit against any person who provides an abortion in violation of the Act, “aids or abets” such an abortion (including by paying for it) regardless of whether they know the abortion is prohibited under the Act, or even intends to engage in such conduct. Courts are required to enjoin the defendant from engaging in these actions in the future and to award the private-citizen plaintiff at least $10,000 in “statutory damages” for each forbidden abortion performed or aided by the defendant. In effect, the Texas Legislature has deputized the State’s citizens as bounty hunters, offering them cash prizes for civilly prosecuting their neighbors’ medical procedures. [Continue reading…]