A near-midnight U.S. Supreme Court ruling that allows Texas to enact a sweeping anti-abortion law will likely have deep ramifications across the country for the constitutional right to abortion established by Roe v. Wade. The law—which prohibits abortions six weeks after “cardiac activity” is detected also provides fresh insight into the court’s new conservative majority following former President Donald Trump’s appointments, says legal scholar Daniel Urman.
The 5-4 decision comes as justices prepare to hear a Mississippi law that would ban most abortions after 15 weeks. News@Northeastern spoke to Urman, who teaches a course on public policy and the Supreme Court, to get his thoughts on the decision and what it means for pregnant people and abortion access across the country. His comments have been edited for clarity.
Can you explain the Texas law?
The Texas law gives private individuals the ability to sue anyone involved in an abortion that takes place six weeks after cardiac activity is detected, with no exceptions for rape or incest. Actually under some interpretations, it could be the Uber driver who drives a woman to a clinic because they played a role in the abortion access. Obviously doctors, nurses and other healthcare professionals could be sued, too. The larger point is they’re trying to scare people, and many clinics have said they can’t take that risk. Also, if the person suing wins, they get a minimum of $10,000 and the person getting sued has to cover attorneys’ fees.
How did this legislation avoid the fate of other anti-abortion bills that have been overturned or blocked, such as the 2019 Alabama law that would make it a felony to perform an abortion after six weeks?
Texas’ legislature passed a law that was trying to evade judicial review. They passed a law where the citizens take action and not the government. Roe v. Wade ruled that the state can’t limit most abortions. In this case, the argument is that the state isn’t acting.
What are the chances that the Texas law gets overturned after the Supreme Court gives it a full vetting?
The vote was taken at the emergency injunction stage, and it’s part of a larger debate we are having about what’s called the “shadow docket,” or the emergency docket. Basically the Supreme Court has a regular docket, which is a case decided on the merits that undergoes a deliberative process of about an eight to 12 months, and then there are emergency dockets that are expedited. The ruling on an emergency case like this is not always identical to the full flowering of the case, but it’s often indicative of what will happen in the case.
Did we basically see a preview here of the merits of the case? I don’t have a perfect answer, but remember, by doing nothing they’re letting Texas ban 85% of the abortions that would have been carried out. So, that’s pretty twisted to ban 85% of procedures and then, down the road, allow them again.
What factors are used to decide whether to hold emergency dockets?
One of the factors is the likelihood of success on the merits. The other factor in issuing an injunction for a law is proving irreparable harm. What is the impact of this law on the parties? What kind of injustice or harm is there? Here, we know the answer 85% of abortion procedures are not possible in Texas. If that’s not a harm I don’t know what it is.
What’s surprising about how the U.S. Supreme Court handled this emergency decision?
Usually, if there’s a big change to the existing law, they hold it, they block it from going into effect. For example, here you’d say, “Whoa, whoa, whoa. This is a six-week heartbeat ban. Let’s strike the law down. Let’s not change the status quo until the Supreme Court has fully reviewed this and weighed in.”
So why wasn’t it blocked?
The language in the midnight order basically says, “We’re not weighing in on the merits, at this point the case presents novel procedural issues and we’re not going to rule yet.” It’s basically judicial abdication. It made them sound like that Saturday Night Live sketch, the unfrozen caveman lawyer. “I’m just feeling my way around here. I don’t know, this law stuff is really hard.”
Justices are scheduled to hear a Mississippi law in the fall that would ban abortions after 15 weeks. How does that bill compare to this Texas legislation?
If the Mississippi challenge [to Roe v. Wade] is like a car going along on the highway at the speed limit, then Texas is like a speeding car that blazes in and cuts Mississippi off. My view is that, by choosing Mississippi the court was choosing a moderate path. Mississippi is a 15 week ban, and the court is trying to move back the current window. In other words, there’s a way the court could revise Roe v. Wade while saying that they still allow access to abortions. They could say it needs to happen in the first trimester, which is about 13 to 15 weeks. Currently you may not restrict an abortion before the fetus is viable, and most doctors say that’s 20 to 23 weeks.
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