The Supreme Court Has Just Two Days to Decide the Fate of Roe v. Wade

[Nevilledog]

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Mark Joseph Stern
@mjs_DC
There is a good chance we will wake up tomorrow to the headline "Supreme Court Lets Texas' Six-Week Abortion Ban Take Effect," but almost everyone is sleeping on it today. https://slate.com/news-and-politics/2021/08/texas-abortion-supreme-court-roe-wade.html… @Slate

The Supreme Court Has Just Two Days to Decide the Fate of Roe v. Wade
If the conservative majority lets Texas’ new abortion ban take effect on Sept. 1, it will very likely have overruled Roe.
slate.com
6:18 AM · Aug 31, 2021

https://slate.com/news-and-politics/2021/08/texas-abortion-supreme-court-roe-wade.html

In a few months, the Supreme Court will hear a case that gives the conservative justices an opportunity to overrule Roe v. Wade, allowing states to ban abortion at early stages of pregnancy. But Texas can’t wait that long. In May, the state’s Republican lawmakers passed a law known as SB 8 that outlaws abortion after six weeks. But SB 8 is unique: It empowers private citizens, not government officials, to enforce it. The measure allows any random stranger to bring a lawsuit in state court against any individual who “aids or abets” an abortion in Texas after six weeks. Anyone in the country may file such a suit against abortion “abettors” in any state court within Texas. If the plaintiff wins, they collect a minimum of $10,000 plus attorneys’ fees. And if they win a case against an abortion provider, the court must shut down that clinic. If the provider somehow prevails, they collect nothing, not even attorneys’ fees.

Texas Republicans devised this convoluted system in order to prevent federal courts from blocking the law—and so far, they’ve succeeded: On Friday, the 5th U.S. Circuit Court of Appeals abruptly canceled a trial judge’s hearing on SB 8’s constitutionality, effectively allowing the law to take effect in two days, on Sept. 1. This aggressive intervention forced abortion providers to do what seems almost unthinkable: Ask the U.S. Supreme Court—the same court that agreed to hear a direct challenge to Roe v Wade only a few months back—for an injunction in an emergency filing on Monday. Their plea raises the inevitably bleak question: Will the conservative justices who control a 6–3 majority of the Supreme Court let Texas overturn Roe v. Wade before they have a chance to themselves?

SB 8 was designed as an Escher staircase for litigators. Its sponsors’ chief goal was to evade review by federal courts otherwise obligated to enforce Roe. Typically, when a state restricts abortion, providers file a lawsuit in federal court against the state officials responsible for enforcing the new law. Here, however, there are no such officials: The law is enforced by individual anti-abortion activists. There’s no specific defendant to enjoin from enforcing the law. The state ensured that even as it runs afoul of current precedent—under Roe, states may not ban abortion before fetal viability, at about 22 to 24 weeks—this version of the six-week ban survives. Texas argues that “abettors” can challenge the law once it’s enforced against them. But SB 8 locks all litigation in state courts that are now obliged to ignore Roe. So the Supreme Court cannot punt now then step in as soon as someone files suit under SB 8. If the justices want to keep abortion legal in Texas, they must act before Sept. 1.

If SCOTUS does allow SB 8 to take effect, it will be open season on Texas’ abortion providers. Anyone, anywhere, can sue an “abettor” of any abortion that takes place after six weeks in Texas. Patients themselves are exempted from a suit, but their loved ones, including spouses, are not. Possible targets may include any person who encourages the abortion, including family members of the patient; rape crisis counselors, genetic counselors, and clergy; a friend who drives the patient to a clinic; donors to an abortion fund; and, of course, the clinic staff who facilitate the procedure. Any person who forms an intent to “abet” the abortion can also be sued, even if they don’t follow through on their intentions. All these individuals can be sued for at least $10,000 per abortion in any state court. If they don’t defend themselves, the court must automatically rule against them.

*snip*


It's now ONE day. Good chance the Supreme Court will deny a stay and that effectively overrules Roe v. Wade through the Shadow Docket. I read that Alito has this case.

[FBaggins]

1. No they don't

They certainly could act to defend Roe quickly.

But they wouldn't be "deciding the fate of Roe" if they just refused to weigh in on an unripe issue. The district court hasn't even ruled on the law's constitutionality at this point. There's nothing to uphold or overturn.


Good chance the Supreme Court will deny a stay and that effectively overrules Roe v. Wade through the Shadow Docket.

It would in no way overrule Roe.

I read that Alito has this case.

Alito oversees the 5th circuit. But the whole court will act on this one.

[PortTack]

3. Thx for the insight!

[Rstrstx]

2. If they pause it it may well be because of its unusual enforcement provision

I’d like to see what the Fifth Circuit said, if anything. Putting the enforcement in the hands of individuals is extremely brazen and portends a lot of messy legal issues.

[lindysalsagal]

4. This is religious nationalism and it's authoritarian and it's tyranny.

And even the "nice" churches are to blame.