Comment: Roe v. Wade not overturned, but it’s dead in Texas

By Leah Litman / Special To The Washington Post

Most people expected Roe v. Wade to end — if the conservative-dominated Supreme Court decided to do away with the precedent — in a blockbuster, end-of-term court decision. The case instead died — as least in Texas, where a law banning abortions after six weeks of pregnancy went into effect Wednesday — because of a few unexplained procedural maneuvers from the Supreme Court and the Fifth Circuit Court of Appeals.

No court issued a decision that said “Roe v. Wade is overturned.” No court issued a decision explaining how it could be constitutional for Texas to effectively ban abortions at a point before many women even realize they are pregnant. But the courts’ nondecisions have the same effects on women in Texas as a decision overruling Roe. It is a curious and intellectually cowardly way to resolve an issue that conservatives have often described as involving important legal and moral principles.

It’s still possible the court will eventually do something to prevent Texas from enforcing this law. But the deadline passed for the court to step in before the law went into effect. And even if the court does act, belatedly, significant damage would have already been done, as abortion providers have stopped scheduling abortions past the six-week-mark and women are unable to obtain the procedure. Some providers are likely to avoid administering abortions at all, to avoid the risk of lawsuits. Some clinics may shut their doors permanently.

The legal dodge was made easier to pull off by the peculiarity of the Texas law, known as SB 8, which was passed in May 2021. The law allows anyone — really, anyone! — to sue medical service providers who perform abortions on women who have been pregnant for longer than six weeks, as well as anyone who assists the women in obtaining an abortion (such as friends, family and clinic employees).

Courts have struck down other so-called heartbeat bills banning abortion at the six-week mark — supposedly the time when a fetal heartbeat can be detected — because they infringe on the constitutional right to get an abortion before the point of fetal viability. (States may regulate abortions before that point, but they may not impose on women seeking abortions an “undue burden.”) The Texas law is obviously unconstitutional, too, but the law’s structure introduced new wrinkles by permitting private individuals, rather than state officials, to enforce the law, letting some judges focus on legal technicalities.

That may have been the point. The new enforcement mechanism in the Texas law created questions about who the providers should sue to prevent the law from being enforced; since state officials, who are often the defendants in such lawsuits, would not be the ones to enforce the law. And courts then used these procedural uncertainties that Texas had created to allow the law to go into effect.

Early this week, a federal district court was set to consider the abortion providers’ request to prevent the law from going into effect. But before the court could hold the hearing, a three-judge panel on the Fifth Circuit appeals court — including two judges nominated by President Trump — used the procedural questions about how the law would be enforced as an excuse to enter an order that “stayed” the proceedings in the district court five days before the Texas law was set to go into effect. The issues the appeals court was weighing included complicated questions about whether state officials had “immunity” from the legal challenges. The issuance of the stay meant the case was placed on hold, preventing the district court from even holding a hearing on whether the law could be implemented.

What the court of appeals did, in short, was run out the clock on the abortion providers. The court could have acted more quickly if it wanted to on the technical questions, thereby allowing the district court proceedings to continue. But it chose to hit pause on the district court proceedings.

Faced with a court of appeals that refused to put the Texas law on hold, and that refused to give them the chance to persuade the district court to consider whether to put the Texas law on hold, the abortion providers turned to the Supreme Court for help: They asked the justices for an emergency injunction against the Texas law on Monday (within 24 hours of the court of appeals’ decision refusing to put the Texas law on hold).

The Supreme Court decided there was no rush. Justice Samuel Alito, who oversees the Fifth Circuit in matters like this, declined to issue an administrative stay while the Supreme Court decided whether to block it on a more permanent basis. He also requested a response from the state to the providers’ request for an injunction, due a mere eight hours before the law was set to go into effect. The response came in, after which the abortion providers immediately filed a reply brief.

And then silence. Until Wednesday night, when the court ruled 5-4 to block the statute.

By refusing to stay the law, the Supreme Court allowed Texas to end legal abortion in the state. By refusing to stay the law while it is being challenged, the Court has avoided having to own up to what it is doing.

It’s hard to know what is motivating the justices who decided on this course of action. Perhaps some thought that while a ruling that effectively overturned Roe in one of the nation’s largest states would be politically explosive, a non-decision that has the same effect might not draw as much attention or inspire as much anger. Perhaps other justices simply didn’t know what to do with the case in light of the complex enforcement mechanism in the Texas law. The court has already agreed to hear, next term, a case involving a similar law in Mississippi that bans abortions after 15 weeks of pregnancy (a law that is currently stayed). Perhaps the justices think that case offers a better chance to lay out its current thinking on abortion, since it doesn’t involve the procedural complexities in the Texas case.

Certainly, if the court is going to reverse itself on a controversial and polarizing issue like abortion — and revoke the right — American citizens deserve to hear the reasoning. The court evaded that responsibility this week. And yet for now, women in Texas are living in a world without access to abortion. Women in Texas are living without Roe.

Leah Litman is an assistant professor of law at the University of Michigan and host of the Supreme Court podcast “Strict Scrutiny.”