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The Supreme Court in Washington, D.C. (AP) The Supreme Court in Washington, D.C. (AP)

The Supreme Court in Washington, D.C. (AP)

Noah Y. Kim
By Noah Y. Kim September 10, 2021

Question: Did the Supreme Court overturn Roe vs. Wade?

Answer: As a legal matter, no. But its decision to let a Texas law banning most abortions to take effect effectively voids the Roe decision in Texas for now, and some legal experts say it may be a signal of the court’s thinking in future cases that could test Roe. 

On Sept. 1, the Supreme Court declined to block SB 8, a controversial Texas law that would effectively ban abortion in the state for women after the sixth week of pregnancy.

The 5-4 decision caused an outcry among abortion rights advocates and sparked panic among Texans seeking the procedure. Three of four San Antonio abortion providers stopped allowing the procedure altogether. On Sept. 9, the Justice Department sued Texas in federal court to block SB 8, the Biden administration’s first significant step to intervene on the ban. 

The complexities of the law and the murkiness of the decision had people asking whether the court had overturned Roe v. Wade, the landmark 1973 Supreme Court ruling that recognizes the constitutional right to an abortion. 

From a strictly legal perspective, the answer is no. Roe v. Wade remains in force. But legal experts say the Sept. 1 ruling does put the future of Roe squarely in doubt by allowing a ban in Texas that defies decades of precedent affirming a woman’s right to an abortion and that contains language that makes it tough to challenge in court. 

"There’s no way that a law like this should be in effect if there’s still a right to choose an abortion," said Mary Ziegler, a law professor at Florida State University.

What did the court decide?

SB 8 bars abortions in Texas once the baby’s heartbeat can be detected on a fetal monitor. That’s usually at about six weeks’ gestation, and well before most women know they’re pregnant. The law makes no exceptions in cases of rape or incest, making it far more restrictive than the standard established by Roe. It also contains an unusual provision that deputizes private citizens, rather than public officials, to enforce the law through litigation.

Under certain circumstances, the Supreme Court can prevent a law from taking effect, at least temporarily, while its constitutionality is being litigated. The justices typically consider a range of factors, including whether there is a fair chance that the court will eventually deem the law unconstitutional and whether the law is likely to cause permanent harm if it goes into effect. 

In the case before the court, Whole Woman’s Health v. Jackson, the plaintiffs, a group of abortion providers, sought the court’s emergency intervention to block SB 8 from taking effect on grounds that it would cause harm to women seeking abortions and deprive them of their rights. 

The court rejected the request. 

The court’s conservative majority didn’t reference Roe v. Wade in the single-paragraph opinion explaining their decision. Instead, they focused on procedural questions raised by the enforcement provisions in the law and the plaintiffs’ challenge, such as which party they were eligible to sue in seeking their injunction.

Why is the court’s decision significant?

The decision signals a potential departure from decades of court precedent on abortion.

Since the landmark Supreme Court abortion cases Roe v. Wade in 1973 and Planned Parenthood v. Casey in 1992, the courts have blocked laws that prohibit abortions before a fetus becomes viable — around the 23rd week of pregnancy. In 2020, for example, a federal court permanently blocked a Georgia abortion bill that, like the Texas law, would have banned abortions after the point at which a fetal heartbeat shows up on an ultrasound, about six weeks into pregnancy. 

The Texas law "clearly violates Roe and Casey," said Carol Sanger, a professor at Columbia Law School and the author of About Abortion: Terminating Pregnancy in Twenty-First-Century America. "No one thinks viability is achieved at six weeks."

Nevertheless, the majority of the Supreme Court allowed SB 8 to take effect, saying that the plaintiffs’ request for an injunction raised "complex and novel" procedural questions that they hadn’t satisfactorily addressed in their petition. 

Those questions surround the law’s novel enforcement mechanism. SB 8 doesn’t make abortion a crime punishable by local or state government; instead, it empowers private actors to sue anyone accused of "aiding or abetting" an abortion after an ultrasound can pick up a fetal heartbeat. Successful plaintiffs would receive $10,000 and reimbursement of legal costs. Successful defendants wouldn’t be reimbursed.

Typically, plaintiffs challenge the constitutionality of specific laws by suing the state officials charged with enforcing them. However, since SB 8 gives private citizens, rather than the state, enforcement power, abortion providers don’t have a clear defendant to sue to stop the law from taking effect. 

That’s by design. The lawyers and GOP representatives who drafted the bill built the enforcement language into the law specifically as a way to insulate it against legal challenges.

To get around the problem, Texas abortion providers sued a judge who would theoretically preside over the private lawsuits meant to enforce the ban, arguing that he would be using state power to carry out the law. The court’s conservative majority, however, wrote that they were still unsure whether they had the authority to block the bill, given its unique enforcement mechanism, and opted to deny the injunction. 

In essence, Justice Sonia Sotomayor argued in her dissent, "the state’s gambit worked."

"This is untenable," she wrote. "It cannot be the case that a state can evade federal judicial scrutiny by outsourcing the enforcement of unconstitutional laws to its citizenry."

So what is the status of Roe v. Wade? 

The majority emphasized in their ruling that they weren’t taking a position on the underlying substance of the Texas measure and that the bill could be challenged as unconstitutional in a future case. 

So Roe v. Wade is still the law of the land. The Supreme Court's ruling "did not overturn Roe v. Wade as a matter of law," Sanger said. 

However, it’s also important to note that the court’s decision practically renders Roe moot in Texas, as almost all women in the state now lack the ability to legally have an abortion. In addition, the court has opened the door for other states to try to circumvent Roe’s protections by adopting the language of the Texas law. 

"The effect of the law is more or less the same as what you’d expect if the court actually overturned Roe," said Ziegler. "The people who are saying that SB 8 functionally overturned Roe are pointing out that if Roe were gone, policy in Texas would look pretty much the same … with some adjustments on the margins." 

The court’s decision is also being interpreted as a signal of what it plans to do with future cases. This fall, the Supreme Court is scheduled to hear arguments in Dobbs v. Jackson Women's Health Organization, a case on whether a Mississippi ban on abortions after 15 weeks is constitutional. With a 6-3 conservative majority on the Supreme Court, abortion rights activists are worried that the justices could use the case to dramatically change the standard established by Casey or reject the constitutional right to an abortion altogether. 

"I think it’s premature to say that (the Supreme Court’s decision) is exactly the same thing as reversing Roe," Ziegler said. "It’s more a pretty powerful signal that that’s probably the direction we’re headed." ​

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Our Sources

Texas Tribune, Abortion providers and distraught patients confront stark realities of Texas’ new law, Sep. 1, 2021

New York Times, Confusion in Texas as ‘unprecedented’ abortion law takes effect, Sep. 2, 2021

New York Times, How the Supreme Court quietly undercut Roe v. Wade, Sep. 2, 2021

Legal Information Institute, Injunction 

Supreme Court, Whole Woman’s Health v. Jackson, Sep. 1, 2021

Casetext, Sistersong Women of Color Reprod. Justice Collective v. Kemp, July 13, 2020

Associated Press, Origin story of the Texas law that could upend Roe v. Wade, Sep. 4, 2021

Associated Press, Florida governor might support abortion ban like Texas law, Sep. 2, 2021

Virginia Law Review, The Writ-of-Erasure Fallacy, Sep. 27, 2018

Bloomberg, Is the Supreme Court ready to overturn Roe? We don’t know, Sep. 2, 2021

Slate, The Supreme Court overturned Roe v. Wade in the most cowardly manner imaginable, Sep. 2, 2021

SCOTUSBlog, Dobbs v. Jackson Women’s Health Organization

Interview with Mary Ziegler, professor at Florida State University College of Law, Sep. 7, 2021

Interview with Carol Sanger, professor at Columbia Law School, Sep. 7, 2021

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