Joe Benning |

Joe Benning |

The three Supreme Court justices appointed by Donald Trump demonstrated their brute power to reshape American jurisprudence this week, letting stand a Texas law that flouts Roe v. Wade by all but banning abortions in the nation's second most-populous state.

Justices Neil Gorsuch, Brett Kavanaugh and Amy Coney Barrett joined Clarence Thomas and Samuel Alito in an unsigned midnight order refusing an emergency request to block the measure, which bans abortions once a fetal heartbeat can be detected.

The order attributes the decision, which upsets decades of precedent, to arcane legal process: The Texas law empowers and relies on private citizens to enforce it via civil claims against violators, worth $10,000 each if upheld, rather than state officials.

That impedes intervention by the high court, since its typical move in such cases is to bar officials from carrying out questionable statutes, the majority said.

"We stress that we do not purport to resolve definitively any jurisdictional or substantive claim," they wrote. "In particular, this order is not based on any conclusion about the constitutionality of Texas’ law, and in no way limits other procedurally proper challenges to the Texas law, including in Texas state courts.”

The decision provoked written dissents from each of the remaining four justices, led by Chief Justice John G. Roberts Jr., who penned a largely process-oriented rebuke, while Justice Sonia Sotomayor, in a dissent joined by Justices Stephen Breyer and Elena Kagan, called the majority's act "stunning." 

"Presented with an application to enjoin a flagrantly unconstitutional law engineered to prohibit women from exercising their constitutional rights and evade judicial scrutiny, a majority of justices have opted to bury their heads in the sand," Sotomayor wrote in an opinion echoing some of the arguments made by the applicants.

The Supreme Court held in Roe “that Texas could not ban abortion prior to viability,” Marc Hearron, attorney for the Center for Reproductive Rights, and Julie Murray, attorney for the Planned Parenthood Federation of America, said in the emergency request.

Before women know they're pregnant

The law signed by Gov. Greg Abbott this spring defies Roe by prohibiting the procedure “starting at six weeks of pregnancy, which is indisputably prior to viability and before many people even know they are pregnant,” the lawyers argued.

Against that backdrop, the court's inaction essentially tells the state that its gambit worked, Sotomayor continued. "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."

It would have been appropriate to grant the applicants' request to block the law while Whole Woman's Health vs. Austin Reeve Jackson, the federal lawsuit challenging it, is argued in lower courts, Roberts wrote.

Lawyers representing the plaintiffs asked the high court to intervene when the Fifth Circuit Court of Appeals in New Orleans canceled a lower court hearing on an injunction to keep the law, Senate Bill 8, from taking effect on Sept. 1.

If granted, the injunction would have allowed the remaining two dozen Texas abortion providers to continue providing the procedure after six weeks of pregnancy.

“The statutory scheme before the court is not only unusual, but unprecedented," the chief justice wrote. "The desired consequence appears to be to insulate the state from responsibility for implementing and enforcing the regulatory regime.”

The Whole Woman's Health case jumped to the fore in a Supreme Court docket that already held a significant challenge to abortion in the state of Mississippi’s petition in Dobbs v. Jackson Women’s Health Organization.

Dobbs had been forecast as the leading test of the 52-year-old Roe v. Wade ruling widely characterized as legalizing abortion in the U.S.

“This is the moment anti-abortion politicians have been waiting for since Roe v. Wade was decided,” Jennifer Dalven, director of the Reproductive Freedom Project at the New York-based American Civil Liberties Union said when the court agreed to take up that case. Dobbs  “could decimate, if not take away entirely, the constitutional right to abortion.”

In 1973, when the court initially created a right for women to end pregnancies before the developing fetus had a reasonable likelihood of surviving outside the womb, the 7-2 majority placed viability at between 24 and 28 weeks.

As medical science has advanced in the decades since, however, debate surrounding abortion rights has focused in part on whether viability is now earlier. Texas joins a number of other states that have tried to prohibit elective procedures much sooner in the pregnancy.


The Dobbs appeal from Mississippi Attorney General Lynn Fitch centers on a law passed by the Republican-controlled legislature in March 2018 that bars abortions after 15 weeks except in medical emergencies. It asks justices to determine whether all bans on pre-viability abortions are unconstitutional.

Mississippi's only abortion provider, Jackson Women’s Health Organization, filed the lawsuit contesting the measure the day after it took effect, and it was blocked by the U.S. District Court, a decision the Fifth Circuit Court of Appeals in New Orleans upheld in an opinion written by Judge Patrick E. Higginbotham.

The high court’s decision two years later to hear Attorney General Lynn Fitch’s arguments for reversing that decision - one based on both Roe and the 1992 ruling in Planned Parenthood v. Casey - alarmed abortion-rights supporters even as it elated their opponents.

The consternation is due in no small apart to Trump’s appointment of Barrett to replace the late Justice Ruth Bader Ginsburg. Senate Majority Leader Mitch McConnell’s caucus installed Barrett, a practicing Catholic widely viewed as an opponent of abortion rights, despite refusing to consider a nominee from former President Barack Obama nine months before the 2016 election. 

The Republican party had deemed the earlier window too narrow, arguing that voters should have a voice via their votes in the presidential race.

McConnell’s maneuvering afforded Trump the opportunity to appoint not only Barrett but Gorsuch and Kavanaugh.

Manhattan Abortion Protest
Debra Reschoff Ahearn |, Abortion opponents lead a procession to a New York City clinic in March 2021.


“If the Supreme Court rules in favor of Mississippi, it will take the decision about whether to have an abortion away from individuals and hand it over to politicians,” said Dalven, of the Reproductive Freedom Project.

The Jackson clinic had urged the high court not to consider the state’s appeal, arguing that the Fifth Circuit had faithfully applied the court’s precedent that a woman “has a right to choose to terminate her pregnancy” before viability, articulated in Casey.

Common sense and science

“That long-standing principle is consistent in an unbroken line of cases since Roe,” the clinic argued in a motion filed by Hillary Schneller, Julie Rikelman, Michelle Moriarty, Jenny Ma and Francesca Cocuzza of the Center for Reproductive Rights and a team of attorneys from Paul Weiss including Claudia Hammerman, Alexia D. Korberg, Aaron S. Delaney and Caitlin Grusauskas in New York and Crystal Johnson in Washington, D.C.

Mississippi and its allies, however, argued that viability – the demarcation line established by Roe - “constantly moves as medical knowledge increases and fails to honor the reality that states have substantial interests of their own, ‘beginning from the outset of pregnancy.’”     

The standard “rejects common sense and science,” the state continued, “and is shaky precedent at best.”

Mississippi’s request for Supreme Court review was supported by 18 other states, including the Republican strongholds of Texas, South Carolina and Alabama. In a friend-of-the-court brief, those jurisdictions said their interests are linked because many of them regulate abortions at 20-22 weeks.

Strict adherence to a viability standard, they said, would prevent them from using advances in medical science to “better craft optimal public policy.” Further, they took exception to the federal district court ruling that first blocked Mississippi’s law, in which U.S. District Judge Carlton W. Reeves linked the measure to “decades-old racism and sexism.”

Former Supreme Court Justice Harry Blackmun, who authored the majority opinion in Roe, acknowledged at the time that the state’s interest in regulating abortions increases “progressively and dramatically as the organism’s capacity to feel pain, to experience pleasure, to survive, and to react to its surroundings increases day by day,” Mississippi’s allies argued in the amicus brief submitted by two Texas officials, Attorney General Ken Paxton and Solicitor General Kyle Hawkins. “If so, then states can enact measures to prevent developed unborn children from suffering the pain of being dismembered during an abortion.”

Their backing was underscored the very week that the Supreme Court intervened, when Texas enacted its ban based on fetal heartbeats, which can be detected at a gestational age of as little as six weeks. Gestational age measures the amount of time since the first day of the mother’s most recent menstrual cycle.

“Today is a dark day for the 7 million women of reproductive age in Texas,” Alexis McGill Johnson, CEO of Planned Parenthood, said after the law took effect.  “People in Texas will not have the right to make a meaningful decision about their health or their future — a constitutional right we’ve had for almost 50 years.”


Just 24 hours earlier, on August 31, waiting rooms at four clinics in Texas operated by Whole Women’s Health, an independent abortion provider, were filled with patients desperate to obtain procedures before they were outlawed, CEO Amy Hagstrom Miller said in a news conference.

Anti-abortion activists protested outside the organization’s Fort Worth clinic throughout the day, she said, contacting police twice and the local fire department once in attempts to disrupt operations.

In the hours between nightfall and completion of the day’s last procedure, protestors brought in giant lights, which they shone on the parking lot, Miller said.

“Every one of us knows somebody or loves somebody who has had an abortion in their lifetime,” she added. “We all know someone who might need an abortion at some point. I ask you, is this the kind of environment we want somebody we love to go through to access safe abortion care?”

After the Texas bill went into effect, Miller said, “anti-abortion politicians can no longer hide behind a guise of health or safety – this is an all-out abortion ban plain and simple. It is cruel, it is extreme, and it’s happening on our watch.”

Abbott, the Texas governor, has a diametrically opposed view: The bill, he said in a signing ceremony, “ensures the life of every unborn child who has a heartbeat will be saved from the ravages of abortion.”

Mississippi’s two Roman Catholic dioceses, based in Jackson and Biloxi, expressed similar support for their state’s legal strategy.

The time has come for the Supreme Court “to examine whether the current law on abortion should be clarified in light of a state’s interests in protecting the sanctity of life,” the two dioceses argued in an amici curiae filing submitted by attorneys Christian Strickland of Schwartz, Orgler & Jordan and Stephen J. Carmody of Brunini, Grantham, Grower & Hewes.

Justices should find, the bishops added, “that the state’s interest in protecting unborn children who have the capacity to feel pain is sufficiently compelling to support a limited prohibition on abortion.”    


Democrats, meanwhile, are redoubling their efforts to insulate Roe’s guarantee of reproductive rights, with Sen. Tammy Baldwin of Wisconsin joining five colleagues to again introduce the Women’s Health Protection Act, which would guarantee a pregnant woman’s right to an abortion free from “medically unnecessary” restrictions.

Abortion-rights opponents have championed, for example, measures such as forcing women seeking an abortion to receive counseling on options for continuing the pregnancy.

Texas law also requires the mother to undergo a sonogram 24 hours before abortion, to be given information on fetal development such as growth of arms and legs and to hear audio of the fetal heartbeat.


By prohibiting such tactics, the Democratic proposal “would protect against unconstitutional laws like Mississippi’s 15-week abortion ban – laws that attack people’s freedom to make decisions about their own bodies and which directly contradict decades of Supreme Court precedent,” Baldwin and the other lawmakers said.

President Biden, meanwhile, is committed to “codifying Roe,” regardless of the outcome of the Supreme Court’s review of Mississippi’s law, Press Secretary Jen Psaki said. “Over the last four years, critical rights like the right to healthcare, the right to choose have been under withering and extreme attack, including through draconian state laws.”

Arguments in Dobbs have yet to be scheduled. In early June, the high court agreed to extend the time for Mississippi to brief the merits of its case through late July. Jackson Women’s Health, the respondent, was given through Sept. 13.

The dueling cases also have illuminated what many are calling the Supreme Court's shadow docket, cases that go through without full briefing or oral argument.

In her dissent in the Texas case, joined by Sotomayor and Breyer, Kagan made clear the threat to justice posed by such an approach.

The court's ruling, "as everyone must agree, is of great consequence," she wrote. "Yet the majority has acted without any guidance from the Court of Appeals — which is right now considering the same issues. It has reviewed only the most cursory party submissions, and then only hastily. And it barely bothers to explain its conclusion—that a challenge to an obviously unconstitutional abortion regulation backed by a wholly unprecedented enforcement scheme is unlikely to prevail. In all these ways, the majority’s decision is emblematic of too much of this court’s shadow-docket decision-making — which every day becomes more unreasoned, inconsistent, and impossible to defend."