The Supreme Court on Wednesday dealt abortion rights activists a crushing blow when a majority of justices declined to block a restrictive new abortion law in Texas, but the legal fight over Roe v. Wade is only beginning.
The case in Texas and another one the high court will consider from Mississippi this year have the same goal, experts say: gutting or overturning Roe v. Wade, the 1973 Supreme Court ruling that legalized abortion nationally.
The laws take two separate approaches to curtailing abortion rights. But as experts explained, they may end up working together — with the help of a conservative Supreme Court — as a well-timed one-two punch that could be a death knell for the landmark ruling.
“Whether it comes in this [Texas] case, or comes in the next term in the Dobbs case, out of Mississippi, it seems very likely that whether they actively reverse Roe, saying that Roe is no longer the law, cases like this will make inroads that will lead to gutting the protections that Roe has provided,” said Joyce Vance, an NBC News and MSNBC legal analyst and a former U.S. attorney in the Northern District of Alabama, in an interview on MSNBC Thursday.
Here is how that could shake out.
Ramifications of S.B. 8
In its 5-4 order Wednesday night declining to block Texas’ S.B. 8, the Supreme Court’s conservative majority both acknowledged that the abortion providers suing to block the law had “raised serious questions regarding the constitutionality of the Texas law,” but nevertheless concluded that their arguments did not adequately address "complex and novel" procedural questions surrounding the law.
Among the uncertainties is whether state officials and anti-abortion activists would try to enforce the law in a way that would allow the court to intervene.
Critics have loudly noted that S.B. 8 was written in a unique way that makes it difficult to challenge in court. Deputizing private individuals to enforce its provisions via civil lawsuits, they’ve said, makes it especially difficult for pro-abortion actors to pre-emptively identify officials to sue to block the law.
“Something that we see in the Texas lawsuit that is a warning sign for the future for longstanding precedent in Roe is this willingness by states to use novel and really unseemly mechanisms to do what they themselves think they can’t do directly,” Vance said. “Whether the court wants to directly take on Roe or not, it seems that litigants will give them a lot of mechanisms to strip out those protections.”
“There are ways to reverse Roe without explicitly saying they’re reversing Roe,” she added.
The Supreme Court decision, while allowing the law to stand, left the door open for future challenges to its constitutionality.
But unless opponents find a case the high court deems worthy of proving the law unconstitutional, it will not only remain in effect — it could also become a model law for other anti-abortion lawmakers in conservative states to replicate.
“This is absolutely the blueprint for how you get around Roe v. Wade, by enabling private parties to bring civil lawsuits,” said Barbara McQuade, an NBC News and MSNBC legal analyst and former U.S. attorney for the Eastern District of Michigan, on MSNBC on Thursday.
“Other states are paying attention and you can bet that in states who are eager to see the end Roe v. Wade, you can bet we are going to see copycat legislation hit the books immediately,” McQuade added.
In the meantime, the case will be sent back down to the 5th U.S. Circuit Court of Appeals, where the issue before that three-judge panel will be one of jurisdiction, not the merits of the case.
Defendants in the case — a collection of Texas judges, court clerks, state officials and one private citizen — argued that the abortion provider plaintiffs had no grounds to sue them. They claimed they cannot be sued because they are not responsible for enforcing S.B. 8. That, they argued, falls to private citizens. The one private citizen defendant, an anti-abortion activist named Mark Dickson, argued he can’t be sued because he doesn’t intend to file any lawsuits under S.B. 8.
Those arguments were initially dismissed by a judge in the Western District of Texas. From there the defendants appealed their arguments to the 5th Circuit, which issued a stay pausing proceedings at the district level. So far, the panel has shown no rush to resolve the jurisdiction issue, denying a motion filed by abortion providers to expedite the case (which prompted the last-minute application to the Supreme Court).
There is no deadline for the Circuit Court to rule, and the law remains in effect until it does.
Ramifications of Mississippi’s ban
Mississippi’s Gestational Age Act, passed by the state’s GOP-controlled legislature in 2018, prohibits abortions after 15 weeks except in cases of medical emergencies or severe fetal abnormalities.
Critics point to the fact that it is a pre-viability ban — prior landmark rulings by the Supreme Court made it illegal for states to ban abortion before a fetus is viable, which generally happens at about the 24th week of pregnancy — as evidence enough that it is unconstitutional.
Supporters of the law, however, claim that advancements in medical knowledge and research suggest that a fetus is capable of detecting and responding to pain by that time and that the point of fetal viability should be shifted earlier in the pregnancy.
The Supreme Court said in May that it would consider the legality of Mississippi's ban, which had been struck down by a lower court ruling, in its upcoming fall term, with a decision likely due in spring 2022.
In a filing in July, however, lawyers for the state of Mississippi urged the Supreme Court to explicitly overturn the two main decisions that legalized abortion in the U.S. — Roe v. Wade in 1973 and a later case, 1992's Planned Parenthood v. Casey — as part of its case to the high court.
But unlike the Texas case, whose future appears for the moment to hinge on unique legal, jurisdiction, and standing issues, Mississippi’s direct appeal is a clear-cut attempt to convince the court to explicitly overturn decades-old precedents on abortion rights, experts said.
“The opportunity for the Supreme Court to really, directly, take a whack at Roe is with the Mississippi ban case,” said Elizabeth Nash, a state policy analyst at the Guttmacher Institute, a research organization that studies reproductive health rights.
Nash, and others, indicated that anything short of the Supreme Court issuing a clear ruling that Mississippi’s law is unconstitutional will provide an opening for additional restrictive laws across the U.S.
For example, if the court were to uphold the constitutional right for women to have a pre-viability abortion, but explicitly change or define what constitutes viability, it would open the door for at least 16 states to move forward with pre-viability bans similar to Mississippi’s that those states have previously advanced but that were stopped by court orders, according to Guttmacher Institute research.
If the high court were to explicitly reverse Roe, up to 22 states could move forward quickly with laws that would restrict abortion. At least 11 states have on the books a “trigger law” — laws that automatically ban most abortions the moment Roe is overturned — and eight states have currently unenforced pre-Roe abortion bans that would snap back into place almost immediately.
“If you put any number of various configurations of these states together, trigger bans, early abortion bans, and states where it would be likely that they adopt legislation that would meet the decision that was handed down, basically what happens is you see most of the South, the Midwest, the Plains, large, large stretches of the country, where abortion would be illegal,” Nash said.
“You’re talking about the real possibility of having very different experiences, as it pertains to abortion access, depending on where you live,” she added.