Jurisprudence

The Conservative Justices’ Reasoning in the Texas Abortion Case Is Legal Mansplaining

Photos of the five conservative justices
Clockwise from top left: Justices Brett Kavanaugh, Amy Coney Barrett, Neil Gorsuch, Sam Alito, and Clarence Thomas. Photo illustration by Slate. Photos by Erin Schaff/Pool/AFP via Getty Images.

If you woke up this morning to the news that in the middle of the night, in an unsigned order, five conservative justices of the U.S. Supreme Court ended 50 years of abortion rights in Texas without full briefing or oral argument, you might well be wondering why they didn’t just wait and do it on the regular docket, in a Mississippi case they will hear this fall. That case, Dobbs, would have achieved most of the same outcomes—Mississippi’s is a 15-week ban as compared with Texas’ six-week—but both were pre-viability and both upend the long-standing rule that pre-viability bans are unconstitutional. After sitting on the Mississippi case for months, the high court agreed to hear Dobbs last spring, despite the fact that there was no circuit split and no need to address the abortion issue at all. The difference was merely that Amy Coney Barrett had taken over from Ruth Bader Ginsburg. There was no meaningful way to understand the decision to take up Dobbs beyond the fact that with Brett Kavanaugh and Barrett now seated, the court finally had the votes to end Roe.

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So if the court planned to do so anyhow, and as early as 2022, in a properly briefed and argued case with an actual trial record, what possible logic led five justices to do the sneaky, garbage version in a page and a half at midnight? They could have used Dobbs and some cynical trickery with the undue burden test to achieve the same result in an open, orderly fashion, but instead they opted to do it over their summer recess, on the shadow docket, without proper explanation or transparency.

The cynic in me stands by the claim that they never intended to do in the open what could be done through sloppy subterfuge; that blaming irascible Texas wackiness, throwing up their hands and sighing that a law that was designed to evade judicial scrutiny somehow should evade scrutiny, and then slinking off to bed in the hopes that nobody would care much was always the most appealing strategy. But a careful look at the shoddy, contemptuous jurisdictional reasoning of the five justices in the majority suggests something even darker. It’s not just that the majority of the Supreme Court functionally ended abortion rights for most women in Texas last night merely because they could. And it’s not just that they did so because—as is so often the case with impressionistic, frayed shadow docket reasoning—their personal feelings about the constitutional right to abortion are quite robust. It’s almost impossible to not go one further and declare that the court opted to end virtually all abortion rights in Texas, in the full knowledge that they were blessing an unconstitutional and brutal piece of lawless vigilantism, because it’s only about women.

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Forgive the hyperbole, but how else could the five justices in the majority—in the fullness of knowledge that by Wednesday morning Texas women would be isolated, terrified, and medically and psychologically endangered as a result of their own inaction—hide behind odious mansplaining about the “complex and novel antecedent procedural questions” that force them to stand by as clinics are shuttered and frantic women beg for services? In 2016, the Supreme Court conceded that a woman is 14 times more likely to die by carrying a pregnancy to term than by obtaining an abortion. The Texas law has no exception for rape or incest. And at six weeks of pregnancy—two weeks past a last missed period—vast numbers of women are unaware that they are pregnant.

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In the event that the five justices who just ended most reproductive freedom in Texas were too busy stroking their chins over the jurisdictional ambiguities of Ex parte Young, Justice Sonia Sotomayor clearly explained that in the “two hours before the Act took effect, one applicant reported that its waiting rooms were ‘ “filled with patients” ’ urgently seeking care while ‘ “protesters [we]re outside, shining lights on the parking [lot].” ’ ” That at midnight, “the Act became law, and many abortion providers, including applicants, ceased providing abortion care after more than six weeks from a woman’s last menstrual period,” and also that after midnight Tuesday “at least one applicant has stopped providing abortions entirely.” Were these facts somehow unknown to the justices when they sought briefing in the case on Monday, they were surely known to them by midnight on Wednesday.

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As my friend Peter Rubin, associate justice on the Massachusetts Appeals Court and former Georgetown law professor, put it in an email this morning, the court’s logic comes down to this: S.B. 8 is “a magic law! The first of its kind! A ghost law! Scares you into shutting your clinic, but when you try to slay it, there’s nothing there!” And if that is so, he adds, “a ghost law OUGHT to be upheld on a shadow docket.” And upheld it was.

Don’t even bother asking what the five justices on the majority of this court would have done with a hypothetical California law that conscripted citizen bounty hunters into reporting their suspicions about a neighbor’s unlawful gun possession. That order would have been 20 pages long, full of robust and muscular constitutional claims and outraged howls about broken Second Amendment promises. But a court that comes to you in the dark of night, without logic or reason, whispering soothing words about how “this order is not based on any conclusion about the constitutionality of Texas’s law” as it upends the constitutionality of Texas law? That is the stuff of ancient gaslighting, reserved for those moments in which Power is explaining to Women that they are just being hysterical, and to kindly lie back and enjoy it.

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Why didn’t the Supreme Court wait a few months and use Dobbs to end Roe in the clear light of day with an opinion that pretended to be respecting precedent as it lectured us about its solicitude for maternal health? Why not offer the relatively generous 15-week ban as a compromise to the Texas ban? But really, why ask why? Why do the thing in the most direct, if brutally violent fashion, when you could have waited a few months, heard actual arguments, then cloaked yourself in three-part tests and jargon and footnotes to paper over the jagged bits? Given a few months’ time, the conservative majority could have insisted it was soberly considering the existing doctrine, respecting long-standing precedent as they disregarded it, calling balls and strikes (as men do) in neutral and sober fashion. But instead they did it at midnight, shrugging that their hands were just tied, and showing Joni Ernst and Susan Collins and Ben Sasse to be the flagrant liars they are.

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The inevitable answer is chilling: This isn’t about guns or speech or money or war. It’s about women, their lives and their bodies and their autonomy. That’s what allows you to do shoddy work, with careless disregard, because who’s going to stop you? You only do the thing in the dead of night, without care or effort, because you believe women are so used to being gaslit that you expect them to just tolerate it. You only do the thing in the dead of night without care or effort because you genuinely believe that they’re only women, and they deserve what they get.

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