Late on Wednesday, the Supreme Court of the United States issued a decision on the Texas “heartbeat bill”, S.B.8, which bans all abortions after just six weeks, and came into effect in the state at midnight on Tuesday.
In a brief, unsigned opinion that stunned not only supporters of reproductive justice, but apparently also the liberal justices on the bench, the Court refused a request by Texas healthcare providers to block enforcement of the country’s most restrictive abortion law.
In essence, a 5-4 majority of the Supreme Court decided that the constitutional right to abortion before fetal viability as set in Roe v. Wade can be overridden at least in part by a state law banning it. At least 85 percent of abortions in Texas are estimated to take place after the six-week mark — a point at which most people don’t even know yet that they’re pregnant.
The decision rested on the fact that the law has not yet been enforced and therefore cannot be challenged — this is by design, as Texas legislators drafted the bill so that it’s enforced by private citizens bringing civil suits against people providing abortions or “aiding” or “abetting” the provision of abortions, rather than by the state itself. (These suits are incentivized by a $10,000 bounty, plus legal costs, to be paid to the plaintiffs in successful cases.)
This means that because it’s private citizens, not state actors like prosecutors, that are technically preventing people from accessing abortions, the law as written skirts the ruling in Roe that the state may not breach the right to privacy enshrined in the 14th Amendment (which in Roe was determined to include a person’s right to choose to terminate a pregnancy). The costs of defending potentially countless cases would likely bring most clinics to their knees.
As SCOTUSblog notes, the majority decision in this case, Whole Woman’s Health vs. Jackson, clarified that this doesn’t mean that S.B.8 is ruled to be constitutional — only that it could not be prevented from taking effect. It also came after just 72 hours of deliberation and no oral arguments, as it was considered as part of the Court’s so-called “shadow docket” — traditionally, time-sensitive cases brought outside normal sitting periods where involved parties face “imminent harm”.
That majority consisted of the Court’s five conservative justices — Samuel Alito, Clarence Thomas, and Trump appointees Neil Gorsuch, Brett Kavanaugh, and Amy Coney Barrett. Chief Justice John Roberts joined the liberal justices, Sonia Sotomayor, Elena Kagan, and Stephen Breyer, in the dissenting minority.
Justice Sotomayor, in her dissenting opinion, called the decision “stunning”. “It cannot be the case that a State can evade federal judicial scrutiny by outsourcing the enforcement of unconstitutional laws to its citizenry,” she wrote, later finishing: “The Court should not be so content to ignore its constitutional obligations to protect not only the rights of women, but also the sanctity of its precedents and of the rule of law. I dissent.”
As the news broke, Twitter users, politicians, celebrities and legal experts shared their horror and shock at the decision.
Whole Woman’s Health vs. Jackson will now return to the notably conservative 5th Circuit federal appeals court for further litigation, with the law in effect in Texas indefinitely unless it is overturned by that court or another above it.