How the Supreme Court Quietly Undercut Roe v. Wade

At 1 a.m. Eastern time on Wednesday, without a single word, the Supreme Court let a state effectively ban abortion for the first time in nearly 50 years.

As night became day became night and abortion providers across Texas turned away patients seeking what was, according to the court’s own precedent, a constitutional right, still the justices said nothing. When they broke their silence 23 hours later, refusing to block a law that unambiguously violates Roe v. Wade, the five-justice majority took only 400 words to describe its reasoning.

It was an extraordinary use of the so-called shadow docket, through which the court handles emergency applications and procedural questions on an expedited basis with limited briefing, no oral arguments and, often, no public explanation.

But it was not the first time the court had used the shadow docket so aggressively. It was not even the first time in the past week.

The Supreme Court has a regular docket of cases that it decides by reading lengthy briefs from each side, hearing oral arguments and, ultimately, ruling on the legal questions involved. Roe v. Wade, Obergefell v. Hodges, Citizens United — those were all on the regular docket, and so, most likely, was every decision you can name.

Because the shadow docket involves so little deliberation and transparency, the court historically hasn’t used it to enable major policy changes or to reverse precedents, and the rulings themselves haven’t been treated as precedents. But that restraint is a norm, not a requirement, and the court has increasingly been breaking it: using the shadow docket more often, on more consequential matters, and with more precedential weight. Last year, it issued several orders on the shadow docket concerning coronavirus restrictions, and went on to cite some of them in rulings on the regular docket.

“That’s really not typical, nor is it supposed to be typical,” said Melissa Murray, a professor of law at New York University and an expert on reproductive rights.

The rise of the shadow docket

The court issued four major orders via the shadow docket last month alone: blocking part of a New York State eviction moratorium, ending a federal eviction moratorium, declining to block a vaccine mandate at Indiana University, and requiring the Biden administration to reinstate a Trump-era immigration policy.

In April, it blocked California’s pandemic restrictions on religious gatherings — a decision that rested on “a new understanding of the Free Exercise Clause of the First Amendment,” said Stephen I. Vladeck, a professor at the University of Texas School of Law and an expert on federal courts. “Reasonable people can disagree about whether it’s a good reading of the First Amendment or a bad one. There’s no dispute it’s a new one.”

“I think it’s a reasonable question, whatever one thinks of the answers the court is reaching in these cases, whether we actually think it’s healthy for so many major questions affecting so many people to be resolved in this highly compressed, circumscribed, truncated review process,” Professor Vladeck said.

The court’s increasingly assertive use of the shadow docket has angered some of its members, like Justice Elena Kagan, who wrote in her dissent from the order on Texas’ law, “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.”

Chief Justice John G. Roberts Jr., the only conservative who dissented, criticized the process less forcefully, writing that the structure of the new abortion law was “not only unusual, but unprecedented,” and that while Texas’ legal arguments “may be correct,” the questions involved were too weighty to resolve in such a rushed way.

Texas’ end-run around the courts

Texas’ law, called S.B. 8, prohibits abortion once cardiac activity is detectable in the embryo — around six weeks’ gestation, before many people know they are pregnant. (Pregnancies are dated from the last menstrual period, so “six weeks” generally means four or less after fertilization, and two or less after a missed period.) Planned Parenthood v. Casey, the 1992 case that affirmed Roe, protects a right to abortion until the fetus can survive outside the uterus, around 23 weeks’ gestation.

What distinguishes the Texas law from bans that courts have blocked everywhere else is that, instead of making abortion a crime prosecutable by the government, it lets any citizen sue anyone whom they accuse of “aiding or abetting” an abortion after the cutoff point — phrasing that includes not only abortion providers but also anyone who, for instance, pays for a procedure or drives a patient to a clinic. Successful plaintiffs will get $10,000 and reimbursement of their legal fees. Defendants who prevail will not be reimbursed.

Already, the law has functionally shut down abortion in Texas.

Outsourcing enforcement of the law was an intentional maneuver to avoid judicial scrutiny by denying providers and patients specific people to sue — a point that Justice Sonia Sotomayor emphasized in her dissent, calling the structure of the law “a breathtaking act of defiance” by Texas lawmakers and writing that her fellow justices had “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.”

Legal experts said the novelty of Texas’ argument made it especially remarkable that the court had used the shadow docket to address it, and that it had initially let the law take effect by doing nothing.

“It is quite striking and quite galling that the Supreme Court would allow a state to essentially destroy Roe under cover of night with no decision,” Leah Litman, a professor of law at the University of Michigan, said Wednesday afternoon, before the court had spoken. “I think it’s pretty cowardly, I think it’s an affront to the rule of law, and it is quite troubling about what it suggests about the enforcement of our constitutional rights going forward.”

If by outsourcing enforcement to citizens, a state can enact a law that would otherwise be blocked as unconstitutional, “there’s nothing that stops other states from enacting similar laws to undermine other constitutional rights,” Professor Litman said. “Religious liberty, Second Amendment protections, property rights, right to bodily autonomy — there’s just no limitation.”

The future of Roe

The question before the court this week was not whether Texas’ ban was constitutional, but whether abortion providers could sue state officials given the enforcement mechanism. The majority emphasized in its short explanation, “This order is not based on any conclusion about the constitutionality of Texas’s law, and in no way limits other procedurally proper challenges to the Texas law, including in Texas state courts.”

But in a practical sense, legal rights and requirements are not meaningful unless they are enforceable. That Roe v. Wade is still on the books does not mean it’s actually in effect for pregnant people in Texas — or that it will be in effect for pregnant people in other states that enact similar laws now that the court has indicated it won’t block them.

“It’s certainly profoundly consequential in terms of whether people actually have access to abortion, and in that way it’s almost tantamount to the overruling of Roe v. Wade,” said Mary Ziegler, a professor of law at Florida State University and the author of “Abortion and the Law in America.”

Professor Ziegler emphasized, however, that the decision did not fulfill the overall goal of the anti-abortion movement: a formal reversal of Roe v. Wade. That would open the door for possible federal action to criminalize abortion even in blue states that don’t want to.

The court could officially overturn Roe as soon as next spring, when it will rule on the constitutionality of a Mississippi law that bans abortions after 15 weeks — a case, Dobbs v. Jackson Women’s Health Organization, that directly challenges Roe without the procedural twists of Texas’ ban.

Before the court released its order on Wednesday, Professor Ziegler said she would need to see whether it focused on the substance of abortion jurisprudence before reading tea leaves about how the court was likely to rule in Dobbs.

An order that focused instead on the procedural elements of Texas’ law — which is what the justices ultimately issued — “would tell us less about where the court is going on abortion,” she said.

But Professor Murray, of N.Y.U., emphasized the “expressive weight” of the court’s action. Procedural complications notwithstanding, it is not normal for the court to allow the enactment of laws that, by its precedents, explicitly violate the Constitution.

“A court that is unwilling to intervene to stop a law that patently violates an established constitutional right that is protected by not one but two constitutional precedents,” Professor Murray said, referring to Roe and Casey, suggests that a majority “doesn’t really think that this right is one that is worthy of protection.”