The Supreme Court’s Handling of the Abortion Battle: A Two-Track Ruse?

Abortion rights advocates rallying at the Supreme Court, Washington, DC. Photo by Adam Fagen via flickr.

The Supreme Court began its current term by taking on a pair of fast-tracked cases, one brought by a group of Texas clinics and one by the Department of Justice, challenging the nation’s most strict abortion law, The Texas Heartbeat Act. On December 10, 2021, the Court ruled against the state of Texas, in what may be construed as a win for abortion providers in the state. However, this ruling may prove inconsequential when the court reaches a decision in Dobbs v. Jackson Women’s Health Organization, a Mississippi case which has the power to severely restrict abortion access throughout the country by overturning the landmark decision in Roe v. Wade.

This is because the cases concerning the Texas law did not deal with the constitutionality of the law itself; therefore, their outcomes have little bearing on the trajectory of abortion access in America. Far more consequential is the pending case Dobbs v. Jackson Women’s Health Organization, in which the Court is considering functionally overturning its two major abortion precedents. The conservative majority of justices’ prerogative to likely do so shows how the paired cases allow the Supreme Court to address pro-choice public opinion in an inconsequential way, while paving the way for conservative policy.

The Texas Heartbeat Act bans abortions at any point following the detection of embryonic cardiac activity. This could be as early as six weeks, which is before many women are even aware that they are pregnant. On September 1, 2021, the justices denied emergency requests from abortion providers to block the law in a split 5-4 decision, allowing it to go into effect.

In late October of 2021, the Supreme Court decided to fast-track its consideration of two cases challenging The Texas Heartbeat Act–the dramatic expediting of the proceedings likely in response to public backlash from the Court’s initial handling of the Texas law.

During the arguments, several justices—including the Court’s most conservative—expressed concerns about the law’s novel enforcement mechanism posing a threat to constitutional rights. The Texas Heartbeat Act gives citizens, rather than state officials, the power to enforce the ban on abortions through civil lawsuits. On December 10, 2021, the Court ruled against the state of Texas—declaring that abortion providers have the right to challenge the law in federal court. The Court’s decision to fast-track the cases concerning the law, coupled with this swift ruling, may signal a positive outlook for those championing abortion access across the country. It is more likely, however, that they serve as a ruse for the damage the court may do in the case, Dobbes v. Jackson Women’s Health Organization.

While the Court did provide abortion clinics a narrow victory in the cases surrounding the Texas law, it weakened their legal strategy by limiting which state officials they can sue. Furthermore, according to legal experts, the state of Texas might be able to easily counter what is left of the lawsuit by making amendments to the law.

In the justices’ latest decision on the Texas Heartbeat Act on January 20, 2022, they once again declined abortion providers’ request to intervene in the ongoing legal challenges. Despite the Texas law contradicting the precedent set in Roe v. Wade, which legalized abortion nationwide prior to fetal viability around 24 weeks, it remains in effect as the cases brought to the court did not deal with the question of its constitutionality. 

In contrast, the case Dobbes v. Jackson Women’s Health Organization deals with the constitutionality of a Mississippi state law that bans almost all abortions after the 15th week of pregnancy, and the December 1, 2021 arguments reveal that the court’s six-justice conservative majority seems positioned to uphold it.

The Gestational Age Act, enacted by the Mississippi state legislature in 2018, has never gone into effect because it was blocked by a federal district court as well as the conservative U.S. Court of Appeals for the 5th Circuit. The courts held that Roe v. Wade, and the later decision in  Planned Parenthood v. Casey (which reaffirmed the constitutional right to abortion first recognized in Roe) bars states from banning abortions before fetal viability around 24 weeks of pregnancy.

During the nearly two hours of oral arguments on December 1st, 2021, Mississippi Solicitor General Scott Stewart claimed that the precedents set by Roe and Casey “haunt our country,” have “poisoned the law,” and have “choked off compromise.” Justices Clarence Thomas, Samuel Alito, and Brett Kavanaugh appeared inclined to agree with Stewart and outright overrule the important precedents set by those cases.

“Will this institution survive the stench that this creates in the public perception–that the Constitution and its reading are just political acts?” Justice Sonia Sotomayor asked, noting that sponsors of the Mississippi ban had written the bill in response to the recent ideological changes in the Supreme Court’s membership.

Justices Sonia Sotomayor, Stephen Breyer, and Elena Kagan’s rebuttal to the points of their conservative colleagues was built on the idea that overruling precedent in response to social or political pressure subverts the court’s legitimacy as a non-political institution. They cited the principle of stare decisis, which holds that courts should adhere to prior precedent except under extraordinary circumstances, which there do not appear to be in this case.

The comments of Chief Justice Roberts suggest that he may be considering a ruling that nominally keeps the precedents set by Roe v. Wade and Planned Parenthood v. Casey in place, but does away with the question of viability, allowing states to prohibit abortions earlier in pregnancy than is currently allowed.

Chief Justice Roberts noted that the question of fetal viability was not at issue in Roe. Instead, its reference was “dicta,” or an incidental remark rather than a precedent. He questioned, “If it really is an issue about choice, why is 15 weeks not enough time?” In order to get a ruling that does not go so far as to formally overrule Roe and Casey, Roberts would likely need the support of Justice Neil Gorsuch or Justice Amy Coney Barrett, both Trump appointees who did not reveal their intentions as explicitly as Justice Kavanaugh did.

Trump promised to nominate justices to the Supreme Court who would overturn Roe v. Wade, and they appear to be poised to do so. Texas’ ambition in their restriction of abortion gives the Court an opportunity to appease public opinion by ruling against the state, while it quietly dismantles abortion rights in the Misissippi case. 

Ultimately, however, this two-track ruse will likely not be successful, and instead serves as an indication of how difficult it is for the Supreme Court to maintain its legitimacy as a non-partisan institution in today’s democracy. 

While it may be their attempt, there is no way for the court to quietly dismantle abortion rights. 21 states have trigger laws to outright ban or severely restrict abortion access, which would become automatic upon the overturning of Roe v. Wade. Most were enacted during the Trump administration after conservative justices Neil Gorsuch and Brett Kavanaugh were confirmed to the Supreme Court.

The more moderate action the conservative majority of justices could choose to take–leaving Roe v. Wade in place while still allowing states to limit abortion access earlier in pregnancy than is currently allowed–seems to appease only Chief Justice Roberts.

The Supreme Court is not alone in being a non-partisan institution by design turned political player. Election officials and police forces join it in creating a dangerous and concerning trend in this country–one which may constitute a true turn in the future of our democracy rather than yet another wave of partisanship.

Saniya Gaitonde is a first-year student at Barnard College and a Staff Writer with CPR. She is from Long Island and plans to study Political Science. She is passionate about American politics, global issues, and law.