On Tuesday, the Supreme Court functionally overturned Roe v. Wade, the landmark 1973 case finding that women have a constitutionally protected right to obtain access to an abortion. After almost five decades of the most impassioned legal and political fighting we have ever seen in this country, the court silently let its most controversial decision slip away by failing to take any action on an emergency appeal.
The Texas law deputizes private individuals to be the ones to enforce the restrictions.
That’s right, after years of legal battles to the death about the continued viability of Roe, the Supreme Court let it end, even if fleetingly, by doing nothing at all.
In May, Texas passed S.B. 8, one of the so-called fetal heartbeat bans, in which as soon as a fetal heartbeat can be detected, abortion is foreclosed. There are no exceptions for rape or incest (unless you’re the person who committed the rape or engaged in incest, then you cannot be the person to sue to enforce the law), and Texas abortion providers estimate this law will ban 85 percent of abortions in the state.
Texas’ law does not just shut down access to abortions before many women even know they’re pregnant. It does something else that upends our basic understanding of civil cases in this country: The Texas law deputizes private individuals to be the ones to enforce the restrictions. Specifically, under the law, private individuals can sue anyone who helps or intends to help a woman obtain access to an abortion after about six weeks of pregnancy.
This extends beyond abortion providers and includes anyone who helps to get a woman to an abortion provider by doing something like providing a ride or anyone who helps to file an insurance claim for an abortion.
There’s another quirk to Texas’ law that is particularly pernicious for those seeking to help women obtain access to an abortion. The law provides that a private individual who sues and successfully shows a violation of the law wins at least $10,000 and their attorneys’ fees. If a defendant successfully beats back one of these suits, they do not get their attorneys’ fees reimbursed. A battle over attorneys’ fees may not sound earth-shattering, but it is actually a key part of what makes this law so difficult for providers. It is not difficult to imagine why the threat of paying attorneys’ fees alone will have a significant chilling effect.
The Texas law was challenged from the beginning. After much legal wrangling, it became clear that the law would go into effect if the Supreme Court did not step in. On Monday, less than 48 hours before the it went into effect, abortion providers in Texas submitted an emergency appeal to the Supreme Court. The court, in response, did nothing. As we all know, sometimes silence is the biggest statement of all.
A battle over attorneys’ fees may not sound earth-shattering, but it is actually a key part of what makes this law so difficult for providers.
There is simply no way to square Texas’ law with the current Supreme Court precedent, the court’s 1973 decision in Roe and its 1992 decision in Planned Parenthood v. Casey. While the court in Casey upheld the “essential holding” of Roe, it created a new standard for determining when states can restrict a woman’s access to abortion. Under the Casey framework, a state can create pre-viability restrictions on a woman’s ability to obtain an abortion as long as they are not “undue burdens.”
If you’re wondering what an undue burden is, the answer is whatever five members of the Supreme Court say it is. There is obviously plenty of room for the court to allow many restrictions on access to an abortion by simply finding that, while they pose a burden, the burden is not undue.
Even if the Supreme Court acts later today, or tomorrow, or next week — and even if it temporarily stops Texas’ law from going into effect — it is hard to escape the conclusion that it would merely be a short-term resuscitation. By letting Roe fall into a coma, the court cannot run from the dismissive way it treated the constitutionally protected right to obtain access to an abortion. A new Supreme Court term begins in October, and the court is already set to consider a Mississippi law that was passed as a full-frontal attack on Roe and Casey. The Mississippi law bans almost all abortions after 15 weeks of pregnancy. Because 15 weeks is still pre-viability, this law would certainly seem to fly in the face of the precedent set by Casey. We now have a court that let a Texas law, which is clearly at odds with current Supreme Court case law, go into effect. It is hard to imagine this same court would have any compunction about overturning or severely disabling the current Roe and Casey framework. Practically speaking, this means many women will increasingly live in two different Americas: one, in states like California, where it is possible to obtain access to an abortion; another, in states like Texas and Mississippi, where that is or becomes essentially impossible. But for today, it is hard to overstate the legal and practical consequences of a Supreme Court that functionally overturns a landmark case that deeply and directly impacts so many Americans, not by having the guts to explain why that case should be overruled, but instead by doing nothing at all.
Jessica Levinson is a Loyola Law School professor and MS NOW columnist. 
