Jurisprudence

The Supreme Court Overturned Roe v. Wade in the Most Cowardly Manner Imaginable

In a threadbare, unsigned order released at midnight, five ultraconservative justices functionally abolished the right to abortion.

Demonstrators oppose Texas’ six-week abortion ban.
Demonstrators oppose Texas’ six-week abortion ban. Michael M. Santiago/Getty Images

At midnight on Wednesday, in an unsigned 5–4 decision, the Supreme Court effectively overturned Roe v. Wade. The five most conservative Republican-appointed justices refused to block Texas’ abortion ban, which allows anyone to sue any individual who “aids or abets” an abortion after six weeks, which is when the vast majority of operations occur. There is no exception for rape or incest. The decision renders almost all abortions in Texas illegal for the first time since 1973. Although the majority did not say these words exactly, the upshot of Wednesday’s decision is undeniable: The Supreme Court has abandoned the constitutional right to abortion. Roe is no longer good law.

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Texas’ ban, known as SB 8, constitutes a uniquely insidious workaround to Roe. It outlaws abortion after six weeks but does not call on state officials to enforce its restrictions.
Instead, as Justice Sonia Sotomayor wrote in dissent, the law “deputized the State’s citizens as bounty hunters, offering them cash prizes for civilly prosecuting their neighbors’ medical procedures.” Random strangers can sue any “abettor” to an abortion anywhere in Texas and collect a minimum of $10,000, plus attorneys’ fees. The act’s language is incredibly broad, encompassing any friend, family member, clergy member, or counselor who facilitates the abortion in any way. Every employee of an abortion clinic, from front desk staff to doctors, is liable as well. And when an individual successfully sues an abortion provider, the court must permanently shut it down.

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Texas Republicans devised this convoluted scheme to avoid judicial review of their ban, which blatantly violates binding Supreme Court precedent protecting the right to abortion before viability (around 23 weeks). And, in Sotomayor’s words, the ultraconservative majority’s decision to let the law stand anyway “rewards” these “tactics.” Abortion providers tried to work around Republicans’ scheme by suing the judges and clerks tasked with executing the ban as well as an individual who indicated that he would sue an abortion “abettor.” Nonetheless, the majority claimed that these providers failed to make a “strong showing” that their legal arguments against SB 8 would be “likely to succeed on the merits,” complaining about the “complex and novel antecedent procedural questions” of the case. After months spent rewriting the court’s own rules by awarding themselves the power to intervene in cases that present all manner of “novel” legal questions—including COVID restrictions and the eviction moratorium—the conservative majority decided it was powerless to halt a direct attack on Roe. And it did so with a thinly reasoned one-paragraph order handed down in the dead of night.

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All four dissenters—the three liberal justices joined by Chief Justice John Roberts— wrote opinions condemning different aspects of the majority’s order. The most candid and outwardly furious, Sotomayor’s dissent, declared that her colleagues had “opted to bury their heads in the sand” in their “stunning” order.

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“The Court,” Sotomayor wrote, “has rewarded the state’s effort to delay federal review of a plainly unconstitutional statute, enacted in disregard of the Court’s precedents, through procedural entanglements of the State’s own creation. The Court should not be so content to ignore its constitutional obligations to protect not only the rights of women, but also the sanctity of its precedents and the rule of law.”

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Roberts’ dissent called Texas’ law not just “unusual” but “unprecedented” in its effort to delegate enforcement of an abortion ban “to the populace at large.” He would halt the law “so that the courts may consider whether a state can avoid responsibility for its laws in such a manner.” Justice Stephen Breyer condemned the majority’s assertion that SB 8’s convoluted structure prevents judicial review, explaining that this structure does not “make a critical legal difference” because federal courts may always halt a law that “threatens to invade a constitutional right.” And, in an unusually sharp dissent—even for her—Kagan denounced the majority’s continued abuse of the “shadow docket,” which “every day becomes more unreasoned, inconsistent, and impossible to defend.”

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It is easy to get lost in the procedural complexities on which the majority hung its hat. But take a step back—as all three liberals did in their dissents—and the big picture becomes obvious: Roe is no longer the law of the land. For a precedent to remain binding, the Supreme Court must enforce it. On Wednesday, the Supreme Court refused to enforce Roe. As a result, virtually all abortions are now illegal in Texas. Any individual who tries to “abet” an abortion faces imminent financial ruin. Some of the state’s clinics have stopped performing the procedure on all but the roughly 10 percent of patients who come in before six weeks of pregnancy. Others, as Sotomayor pointed out, have stopped performing abortions altogether. Which means that almost all Texas women cannot obtain a legal abortion in their state, right now, already. If the conservative justices have not formally reversed Roe, they have at least suspended it in Texas. The writing is on the wall. And there is nothing to stop other GOP-controlled legislatures from copying Texas’ playbook.

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While Roberts’ dissent was the least impassioned of the four, it may be the most surprising. The chief justice had no obligation to note his vote in this (or any) shadow docket case. Instead, he made it very clear that he could not condone the majority’s hasty, bad-faith retreat from precedent. By doing so, he highlighted the fact that Justice Amy Coney Barrett’s vote made all the difference in this case. If Justice Ruth Bader Ginsburg were alive, Texas women would have retained their right to reproductive autonomy.

The same would be true if Justice Anthony Kennedy had remained on the court and not been replaced by Justice Brett Kavanaugh. (Or if Merrick Garland, rather than Neil Gorsuch, had replaced Justice Antonin Scalia.) In defending her vote to confirm him to the bench, Republican Sen. Susan Collins said Kavanaugh believed that precedent was “not something to be trimmed, narrowed, discarded, or overlooked.” Now Kavanaugh has allowed Texas to overturn Roe, a nearly half-century-old precedent. He took less than three years to prove her wrong.

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It was predictable that the Supreme Court would abandon Roe after Barrett replaced Ginsburg. But it is still “stunning,” as Sotomayor put it, that it would do so at midnight on a Wednesday in a shadow docket order with a few slapdash sentences of opaque reasoning. It is stunning, too, that the court would issue this order nearly a full day after it silently allowed Texas’ law to take effect. The majority’s decision reflects flagrant contempt for the right to abortion and a cynical tolerance for Republican politicians’ endless schemes to abolish it. The majority did not have the patience to wait until its coming term, when it will have the opportunity to overturn Roe the normal way, with full briefing, oral arguments, and a signed opinion. Nor did it have the courage to cop to its real view—that there is no constitutional right to abortion. Instead, the ultraconservative majority upended Roe under the cover of a procedural punt.

The Constitution deserved better. Abortion patients in Texas deserved better. The country deserved better. Instead, five Republican-appointed justices have stripped women in the nation’s second-largest state of their reproductive autonomy. And they did so in the most cowardly, dishonest, and shameful manner imaginable.

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