What SCOTUS’ decision not to block the Texas abortion law means

In this May 5, 2021 file photo, Texas state Rep. Donna Howard, D-Austin, center at lectern, stands with fellow lawmakers in the House Chamber in Austin, Texas, as she opposes a bill introduced that would ban abortions as early as six weeks and allow private citizens to enforce it through civil lawsuits. The law banning most abortions in the state took effect at midnight on Sept. 1. Photo: The Associated Press
By Robert C. Jones Jr. and Janette Neuwahl Tannen

In this May 5, 2021 file photo, Texas state Rep. Donna Howard, D-Austin, center at lectern, stands with fellow lawmakers in the House Chamber in Austin, Texas, as she opposes a bill introduced that would ban abortions as early as six weeks and allow private citizens to enforce it through civil lawsuits. The law banning most abortions in the state took effect at midnight on Sept. 1. Photo: The Associated Press

What SCOTUS’ decision not to block the Texas abortion law means

By Robert C. Jones Jr. and Janette Neuwahl Tannen
University of Miami scholars analyze the high court’s narrowly decided opinion on the nation’s most restrictive abortion law yet.

In a major blow to the reproductive rights of women in the United States, the Supreme Court declined to stop a Texas law banning most abortions.

The vote on this emergency order was 5 to 4, with Chief Justice John Roberts and the court’s three liberal justices—Stephen Breyer, Elena Kagan, and Sonia Sotomayor—dissenting in the narrowly decided opinion.

University of Miami scholars in law, sociology, political science, and gender and sexuality studies weighed in on the decision. They include Caroline Mala Corbin, professor of law and Dean’s Distinguished Scholar at the School of Law; Charlton C. Copeland, professor of constitutional law and Dean’s Distinguished Scholar at the School of Law; Gregory Koger, professor and chair of the Department of Political Science; Claire Oueslati-Porter, interim director of the Gender and Sexuality Studies Program; and Alex Piquero, professor and chair of the Department of Sociology in the College of Arts and Sciences. 

What is the Texas law and why is it unusual? 

Caroline Mala Corbin: Texas banned abortion after six weeks of pregnancy. This is not unusual. Many other states have done this, but they have always been immediately challenged in federal courts, with the court fairly quickly ruling that such laws are blatantly unconstitutional. Under existing Supreme Court precedent, bans before viability (around 24 weeks of pregnancy) are unconstitutional.  

Unlike other states, however, Texas made the law enforceable by private persons instead of the state; indeed, it explicitly bars any Texas official from enforcing the law. Instead, anyone anywhere—even someone with no connection to the abortion, even someone outside Texas—may bring a lawsuit. Moreover, it is not only abortion providers who are liable, but anyone who helps the women get an abortion after six weeks of pregnancy, or anyone who intends to help a woman get an abortion after six weeks. Finally, the Texas law creates a financial incentive to bring these lawsuits as each successful one comes with an award of at least $10,000. 

What is going on in the federal courts with the law?  

Caroline Mala Corbin: This enforcement scheme is highly unusual. Usually, the state enforces its own laws, and when a law is challenged before it goes into effect, the state officials in charge of enforcing the law are the defendants. With the Texas law, it is simply unclear who should be sued. Unless the proper parties are before it, a federal court does not have authority to hear the case. By creating these complicated procedural questions, Texas was trying to insulate its law from judicial review. 

Apparently, Texas has thus far succeeded. A district court in Texas thought the procedural hurdles had been met and had scheduled a hearing to decide whether or not to temporarily prevent the law from going into effect. Before the hearing, however, the defendants appealed to the Fifth Circuit, which told the district court to hold off its hearing while it considered the procedural questions. Because the Fifth Circuit failed to make a timely decision—which meant the district court had no opportunity to stay [or suspend] the law—those challenging the law sought relief from the Supreme Court. Relief was not forthcoming. The Supreme Court issued nothing before Sept. 1, allowing the Texas abortion ban to take effect. Then, late Thursday night in a 5-4 decision, the Supreme Court officially refused to intervene on the grounds that the plaintiffs failed to persuade the court that they would prevail on the “complex and novel” procedural questions. The majority added that its order was “not based on any conclusion about the constitutionality of Texas’s law.”  

Why did the parties challenging the law get the Supreme Court involved?  

Charlton C. Copeland: In this case, the parties challenging the Texas law asked the Supreme Court to issue an injunction to stay [or suspend] the legislation just enacted in Texas and the court refused.

Stays pending appeals are often a common practice of lawyers. They are asking the court to keep things status quo (in this case, not allowing the new Texas law to be enforced), until a judge can rule on whether the law is constitutional or not. This generally arises out of a fear that if we allow statutes of questionable constitutionality to move forward, they will have effects, and people’s rights may be infringed upon, even if the law is later ruled unconstitutional. 

It is altogether surprising that the Supreme Court would decide not to issue a stay in a case of this magnitude. Particularly when that legislation is faced with a serious constitutionality challenge and the precedent up to this point is that the Supreme Court has not upheld these challenges [to women’s reproductive rights as a result of Roe vs. Wade]. 

In a case like this, it is not common for the Supreme Court to deny a stay, so this is pretty big. 

What are some of the effects we will notice as a result of this decision?

Gregory Koger: The practical short-term effect is that Texas will no longer have abortion clinics. Existing providers will, reportedly, cease to provide abortion services for fear of civil penalties. Even if months or years from now, the Supreme Court decides this law is unconstitutional, Texas will have no abortion clinics until new providers emerge.

In this case, the seemingly conservative Chief Justice John Roberts sided with the more liberal justices. Has he now become the deciding swing vote on the court?

Charlton C. Copeland: It’s monumental that Roberts is dissenting because it’s a recognition on his part and a signal that he has lost his court. The sense is, or was, that the Chief Justice would be able to moderate, yet now he is the most liberal of the conservative members of the court. So, I don’t think he can effectively play that role anymore. Not after the addition of Amy Coney Barrett. The swing vote has moved one to the right and that is now Justice Brett Kavanaugh. We had a court for years where Justice Anthony Kennedy was the swing vote, and after his retirement and [Ruth Bader] Ginsburg’s death, Roberts was the swing vote. Now that has simply changed. 

Gregory Koger: My read on him is that Chief Justice John Roberts cares a lot about the integrity of the court as an institution, so he is very concerned about its overreach in this case. And he is concerned that the Republican majority on the court may push constitutional law too far in one direction and cause a backlash against the court as an institution. 

Is Roe vs. Wade in danger of being overturned and could we see a return to illegal backroom abortions in Texas? 

Claire Oueslati-Porter: Abortions will continue, even if abortion is illegalized. In Texas, where abortion is now essentially illegal, those people with money and resources will still be able to access safe abortions. Those Texans who need an abortion who do not have money or resources will be forced to seek unsafe medical procedures. This is a health care inequality issue. 

Alex Piquero: I have a significant fear that the passage of this very restrictive law in Texas could not only see women leave Texas for certain medical procedures, but also potentially lead to illegal abortions—which are not supervised or conducted by trained medical professionals—that could lead to serious injury and even death. 

Are more states about to pass similar laws like the one in Texas, as Florida lawmakers are hinting at? 

Gregory Koger: States that have anti-abortion or pro-life majorities in their legislature have gradually increased the restrictions and impediments before someone can get an abortion. All these actions just make it difficult for women to access their right to an abortion.

However, polls indicate that the portion of the U.S. population that supports laws like this is far less than the majority. Even in Texas. This makes it politically risky for state legislators to impose a Texas-style shutdown of all abortion providers in their states, even if the laws are later overturned by federal courts.

Will there be any political ripple effects of this development?

Gregory Koger: In the past, state legislatures may have felt like they could pass laws restricting abortions, knowing that the U.S. Supreme Court or the federal courts would strike them down—and the legislators who voted for those laws would not face the full political consequences for banning abortion. But if the Supreme Court continues in this direction, and fully overturns Roe vs. Wade, then those days are over because the laws will go into effect.

So, politicians will then have to decide how much they want to keep supporting pro-life legislation in an environment in which their actions translate to policy.