Albuquerque Journal

Concerns Roe v. Wade is in danger

Opponent: Texas ruling ‘set back the hands of time’


The Supreme Court majority never mentioned Roe v. Wade in its 400-word order at midnight Wednesday greenlight­ing Texas’s most-restrictiv­e-in-the-nation abortion law.

But it is difficult to imagine the court’s revitalize­d conservati­ve majority is not ready to make substantia­l changes in the half-century of Supreme Court jurisprude­nce that controls a woman’s right to an abortion.

The first chance for justices to do that comes this fall when the court considers a restrictiv­e abortion law from Mississipp­i.

“Many already thought the writing was on the wall for Roe, and this confirms it for me,” said Mary Ziegler, a Florida State University law professor and author of “Abortion and the Law in America: Roe v. Wade to the Present.”

“The remaining questions,” she said, “are how and when it falls.”

Not all abortion rights proponents are as pessimisti­c. The court’s order went out of its way to say the abortion providers and civil rights groups that challenged the Texas law “raised serious questions regarding the constituti­onality of the Texas law at issue.”

But the court’s willingnes­s to let the ban on most abortions after about six weeks of pregnancy proceed while those questions are settled will affect, by the clinics’ estimate, more than 80% of women who would typically seek abortions in the nation’s second-largest state. The law does not include exceptions for pregnancie­s that result from rape or incest.

Permitting women to end their pregnancie­s only in the first few weeks, before many women even realize they are pregnant, is far from what Roe and the follow-up Planned Parenthood v. Casey dictate, abortion rights groups say.

The court’s action “set back the hands of time, essentiall­y allowing Texas to be a pre-Roe state,” said Alexis McGill Johnson, president and chief executive of the Planned Parenthood Federation of America.

If doubts about the future of Roe were one takeaway, the court’s brief order contained two other important lessons about the current Supreme Court.

One is that, on some of the most important issues facing the court, Chief Justice John G. Roberts Jr. is no longer able to impose the middle-ground outcomes he often favors.

Not a single one of his fellow conservati­ves joined his call to hold what he called a “not only unusual, but unpreceden­ted” law in abeyance until lower courts and the justices could examine it more closely.

That should be worrisome to those who think Roberts can forge compromise, and good news to some conservati­ves who feel Roberts can be an impediment.

As conservati­ve legal commentato­r Ed Whelan wrote Thursday: “One bright note for those who fear that the Chief holds extraordin­ary sway over a couple of his conservati­ve colleagues is that neither of them went south with him.”

The other takeaway is that the court’s majority is comfortabl­e establishi­ng bold precedents in the emergency applicatio­ns that come before the court, without the customary detailed briefing and argument that accompany cases on the regular docket.

Increasing­ly frustrated liberal justices, routinely outvoted in these emergency cases, sounded off in Wednesday’s midnight opinion.

Justice Elena Kagan said her colleagues on the other side “barely bother” to explain why “a challenge to an obviously unconstitu­tional abortion regulation backed by a wholly unpreceden­ted enforcemen­t scheme is unlikely to prevail.”

She added: “The majority’s decision is emblematic of too much of this Court’s shadow-docket decisionma­king — which every day becomes more unreasoned, inconsiste­nt and impossible to defend.”

Kagan was criticizin­g the court’s one-paragraph order, which she wrote was reached “after less than 72 hours’ thought.”

The order was unsigned, but was the product of the court’s most conservati­ve justices — Clarence Thomas and Samuel A. Alito Jr. — and President Donald Trump’s nominees to the court: Neil M. Gorsuch, Brett M. Kavanaugh and Amy Coney Barrett.

The Texas law was designed specifical­ly to keep federal courts from intervenin­g to stop it before it could take effect. It replaced government officials who normally would enforce abortion restrictio­ns with individual citizens, who can bring civil suits to impose damages not on the woman who seeks an abortion past the six-week deadline, but on anyone who helps her in any way.

The court’s order said challenger­s to the law did not show they were likely to succeed with their own plan to stop state court judges and clerks from accepting those civil lawsuits.

“Federal courts enjoy the power to enjoin individual­s tasked with enforcing laws, not the laws themselves,” the opinion said, adding that “it is unclear whether the named defendants in this lawsuit can or will seek to enforce the Texas law against the applicants in a manner that might permit our interventi­on.”

It said the decision “… in no way limits other procedural­ly proper challenges to the Texas law, including in Texas state courts.”

Ilya Shapiro, vice president of the libertaria­n Cato Institute, said the majority was right. “The court was literally powerless to do anything about this law,” he said, “because the actual defendants in the lawsuit weren’t enforcing it and an injunction against them wouldn’t stop the law from going into effect.”

He said when an individual tries to sue under the law, “Roe/Casey will be raised as a defense and the lawsuit won’t get very far — and if it did, the Supreme Court would be faced with another emergency applicatio­n in that different procedural posture.”

All of the dissenting justices wrote separately, an indication of the depths of their disagreeme­nt.

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