Legal experts said the Supreme Court’s refusal Wednesday to block a new Texas ban on most abortions could foreshadow further erosion of reproductive rights by the conservative majority court.
The court’s next opportunity to take up such a case is just months away, with the justices preparing next term to review a 15-week abortion ban by Mississippi that takes direct aim at the court's landmark 1973 ruling in Roe v. Wade that first recognized a constitutional right to the procedure.
“People need to remember that the justices who are willing to let Texas’ ban go into effect have been raised on a steady diet of teachings that Roe has always been illegitimate,” said Robert Tsai, a constitutional law professor at Boston University. “For most of them, it has been just a matter of when, not if, to vote against abortion rights.”
The court’s Wednesday denial of an emergency request from abortion providers to block the Texas law came just before midnight in a 5-4 ruling, with Chief Justice John Roberts joining the court's three liberal justices in dissent. Among the five-member majority were three justices nominated by former President TrumpDonald TrumpSenate rejects attempt to block Biden's Saudi arms sale Crenshaw slams House Freedom Caucus members as 'grifters,' 'performance artists' Senate confirms Biden's nominee to lead Customs and Border Protection MORE, who helped to transform the court into more sympathetic audience for anti-abortion measures than even just one year earlier.
In particular, Trump's appointment of Justices Brett KavanaughBrett Michael KavanaughGOP Sen. Braun says abortion laws should be left up to states Neil Gorsuch's terrifying paragraph GOP infighting takes stupid to a whole new level MORE and Amy Coney BarrettAmy Coney BarrettTrump came in contact with 500 people between first positive test and hospitalization: report Neil Gorsuch's terrifying paragraph What's that you smell in the Supreme Court? MORE cemented a 6-3 conservative court, threatening long-standing federal abortion protections.
“Justices Barrett and Kavanaugh were put on the Court to overturn Roe v. Wade and strip us of our constitutional right to abortion,” said Elizabeth Sepper, a law professor at the University of Texas. “And last night they didn’t overturn Roe v. Wade but they did strip Texans of their rights to abortion.”
The Texas law at issue was signed in May by Gov. Greg Abbott (R) and took effect Wednesday. It prohibits abortions after a fetal heartbeat is detected, which can occur as early as six weeks after a woman becomes pregnant. The statute only makes exceptions for medical emergencies, with no exemptions for pregnancy resulting from incest or rape.
An estimated 85 to 90 percent of women who get an abortion in Texas are at least six weeks into their pregnancy, and the burden is expected to fall most heavily on teens, people of color, and women living in rural areas, experts said.
“The current Court has just shown us it is ready and willing to upend the constitutional rights of millions of Americans without experiencing much indigestion,” Tsai said.
The Texas law contains a novel mechanism that authorizes private citizens to sue those who perform or aid the procedure in violation of the measure, providing for at least $10,000 for each successful suit.
The majority of Supreme Court justices pointed to the procedural complexities arising from this legislative design to explain their refusal to block the Texas law, despite noting “serious questions” about its constitutionality.
Several experts, however, called the court's rationale disingenuous.
“The Supreme Court could have overcome those hurdles to enjoin a law that will effectively ban access to abortion in Texas in clear violation of longstanding precedent,” said Maya Manian, a visiting professor at American University Washington College of Law.
The constitutional right to abortion was first recognized in the Roe v. Wade decision, which prohibits states from banning abortion before a fetus is viable, typically around 24 weeks of pregnancy.
According to the abortion-rights organization the Guttmacher Institute, more than 90 abortion restrictions have already been enacted by states in this year alone, including some designed to challenge Roe, leading the group to describe 2021 as “the worst legislative year ever” for abortion rights in the U.S.
A decision undercutting Roe would have a cascading effect in dozens of states, advocates say. The South and Midwest in particular could see severe restrictions and even outright bans placed on the procedure, they warn.
One such state is Mississippi, whose ban on abortion after 15 weeks of pregnancy will be reviewed by the court in its upcoming term.
Mississippi has argued that fetuses are capable of sensing pain around the 15-week mark, and the state’s attorney general has explicitly urged the Supreme Court to use the case to overturn Roe v. Wade.
Most experts who spoke to The Hill said they believe the court would uphold the Mississippi restrictions and reverse key elements of Roe and related rulings. But there was no consensus over just how far the Supreme Court might go in paring back federal protections.
Aziza Ahmed, a law professor at the University of California, Irvine School of Law, said abortion rights advocates like her are now straining to develop legal arguments in hopes of staving off an all-out assault of abortion rights by the court.
“We’re all afraid to acknowledge that the court is stacked, and we know what's coming and we know what the ideologies are of the justices who have the majority,” she said. “The question now is what would be a winning argument that would convince them that they shouldn't go as far as they might actually go?”
Even if the court does not use the Mississippi case as a vehicle for overturning Roe outright, experts said the prospects were dim that federal abortion protections will emerge without further erosion from the current court in light of Wednesday's ruling.
“The only way to understand the Court’s action is that there are five votes to overrule Roe v. Wade,” said Erwin Chemerinsky, dean of the University of California, Berkeley, School of Law. “Given their desire to do so and their opposition to abortion rights, they could not bring themselves to block the Texas law.”