In early September, in the Supreme Court, it was all smooth sailing for Texas’ S.B. 8, a novel abortion ban. The law, which bans abortion at six weeks (or roughly two weeks after a person could even plausibly know they were pregnant), had upended health care in the state; most abortion providers had stopped providing services after the sixth week of pregnancy, and the state’s narrow medical exception had forced women seeking other forms of care, including treatment of life-threatening ectopic pregnancies, to travel out of state.
At first, the Supreme Court treated S.B. 8 as a sort of interesting thought experiment — five justices allowed the law to go into effect when abortion providers filed an emergency petition asking the court to block it. Those five justices voted that Texas may be able to invoke sovereign immunity, which limits when states can be directly sued in federal court, to defend itself from suit.
On Monday, when the court heard oral arguments in two challenges to the law, Texas found itself in trouble. Five — and perhaps as many as six — justices seemed to have grave concerns about Texas’ strategy to nullify the right to abortion. Justice Amy Coney Barrett, for example, said the law was designed to prevent abortion providers in Texas from presenting a “full constitutional defense.”
But if you’re starting to think the justices’ concerns with S.B. 8 might mean they are committed to protecting abortion rights, don’t. The objections we heard on Monday, especially from the justices whose votes will be crucial in any case where abortion rights are at stake, had much less to do with abortion than with the Court’s desire to protect its own power.
That means that Roe v. Wade, which could be on the chopping block as soon as next year, is nowhere close to safe, no matter what happened on Monday — and in fact that Monday could be just the first step of many on the way to overturning Roe.
In fact, abortion rights barely appeared in the justices’ questions in the two cases, one brought by abortion providers, a second brought by the Justice Department. “There’s a loophole that’s been exploited here or used here,” Justice Brett Kavanaugh said. “It could be free speech rights. It could be free-exercise-of-religion rights. It could be Second Amendment rights.”
Perhaps the lack of focus on abortion rights should be no surprise. The justices now seem convinced that abortion providers can challenge the constitutionality of S.B. 8 — and if there is a way to get into federal court, the constitutional problems with Texas’ law are obvious.
But until that happens, the right to an abortion as it was recognized under Roe v. Wade is still under threat.
Roe v. Wade protects a right to choose abortion until viability — which occurs at roughly the 24th week of pregnancy. Texas’ ban kicks in at six weeks — well before viability. But the court still let S.B. 8 remain in effect. If the justices side against Texas in the providers’ case, they will most likely send the case back to the district court. It will then take time to get a decision holding that S.B. 8 is unconstitutional; an order blocking it will be appealed to the conservative Fifth Circuit, which will likely side with the state and force abortion providers to appeal to the Supreme Court again. All of this will take time. In the meantime, pregnant women in Texas will have to travel out of state for abortions or other forms of reproductive health care.
Despite these serious impediments to abortion access, the court has allowed S.B. 8 to remain in effect as the justices consider whether either abortion providers or the Justice Department can sue.
That is because the court’s conservative supermajority still seems to be gunning to curtail abortion rights. The justices have a perfect opportunity to take a shot at Roe this term in Dobbs v. Jackson Women’s Health Center, a Mississippi case involving a ban on abortion at 15 weeks.
The court had plenty of choices when it came to cases that could chip away at Roe. Many of them did not seem to require a major change in abortion jurisprudence. The same was not true of Dobbs. Roe protects a right to choose abortion until viability. Mississippi bans abortion before viability. To side with the state, the court has to say that Roe was wrong about viability — or that there is no right to choose abortion.
In the Texas case, on the other hand, the justices seemed to treat the S.B. 8 case not as one about abortion but about the power of the courts.
Texas took it upon itself to nullify a right that the court has recognized and then claimed that the federal courts could not do anything about it.
That might not bother the court when it comes to Roe, given that abortion rights might not be long for this world. But conservative groups pleaded with the court that states could use the same strategy to gut other rights, including ones about which the court’s conservatives care a great deal. The justices seem intent on expanding the right to bear arms and the free exercise of religion. States could use S.B. 8-style laws to frustrate those ambitions. If the court held that abortion providers could not sue Texas, that would be a way of surrendering some of the court’s own authority. And as much as this court may be ready to reverse Roe, allowing Texas to make this kind of power grab is another thing entirely.
The court is no more likely to save abortion rights than it was before Monday’s oral argument. What the justices suggested Monday was that they will jealously guard their own authority to interpret the Constitution. That means fending off some nullification attempts, like S.B. 8. And it means managing popular perceptions of the court — and especially reinforcing the claim that the court is above politics. Allowing abortion providers to challenge S.B. 8 might advance both of these goals without closing the door on other avenues to eliminating abortion rights.
So, if you listened to the justices’ words Monday, you did not hear that Roe is safe. The justices may not want Texas assigning itself the authority to overrule Roe because they want the power to do so themselves.