The Supreme Court, which allowed a ban on abortion to take effect from unprecedented viability in Texas, has raised questions about Roe’s status against Wade, the 1973 ruling that protects the right to abortion at the level of national.
For some experts, this marks the end of the line for federally protecting the right to abortion, especially with an upcoming case that will soon be heard by the court directly challenging Roe.
“Roe v. Wade has died in Texas, the second most populous state,” Elizabeth Sepper, a professor at the University of Texas at Austin Law School, told ABC News, “and I think he’s really hanging from a thread the rest of the nation “.
He did not lie down, but there are those who say ignored in the case of Texas
The Supreme Court made no remarks on the constitutionality of Texas law, but rejected a request for an emergency instruction, which alleged technical reasons, in a brief so-called shadow file, which allowed that the law come into force while it is being legally challenged. .
“So we don’t see a quote from Roe v. Wade, we don’t see a discussion about the constitutionality of the abortion ban, but here we are, right?” Sepper said. “Abortion is banned in the state of Texas, and that speaks far beyond this farce sentence and the paragraph we got from the court.”
In Roe in 1973 and Planned Parenthood v. Casey in 1992, the Supreme Court affirmed “the freedom of the constitutionally protected woman to decide to have an abortion before the fetus reaches its viability and obtain it without undermining state interference.”
Texas law prohibits doctors from causing abortions just six weeks after pregnancy, long before it is viable.
“Having allowed this to happen in this procedural way,” said Kimberly Mutcherson, co-dean and law professor at Rutgers Law School, referring to the Supreme Court, “is something I would have thought were at least a little too good for , but apparently I was wrong. “
On Thursday, the Justice Department sued the state of Texas to block the law, and Attorney General Merrick Garland called it “clearly unconstitutional under the long-held Supreme Court precedent.”
Domino effect
Since an almost total ban was allowed in Texas, Republican lawmakers in other states have said they intend to mimic the law.
Priscilla Smith, a senior researcher on the Yale Law School’s reproductive justice program who argued in the Supreme Court in an abortion case in the 2000s, described the court’s action as “cowardly.” “Completely illegal.”
“He actually turned it around by saying,‘ This is how you can get out from under Roe. ’So states are being instructed on how to do something to get Roe not to apply to his state,” he said.
Texas law is different from previous prohibitions, as it prohibits the state from enforcing the prohibition, rather than allowing private citizens to file civil lawsuits against anyone who “helps or incites” an abortion.
With that, Mutcherson said, “they created that kind of confusion and that hook that the Supreme Court was able to use.”
“This kind of tactic will be used nationwide in states against abortion to deprive women of federal constitutional protections,” Smith said.
Next case
Meanwhile, the Supreme Court has agreed to hear a case from Mississippi’s mandate, Dobbs v. Jackson’s Women’s Health Organization, which challenges another viability ban. The state of Mississippi formally asked the court to quash Roe as part of this case.
“The Supreme Court’s decision not to rule on the Texas abortion law strongly signals, I think, the outcome of the 15-week abortion ban in Mississippi,” Sepper said.
As precedents might indicate that the Texas ban should have been imposed, Sepper said, “I think that really means the end of Roe.”
Smith agreed, “There’s no reason to think they won’t just fall right.”
Since 2018, Chief Justice John Roberts has intervened as a general vote on abortion, including the position of liberal-leaning judges in the latest full-term abortion case, although his opinion goes follow procedural lines.
But the Supreme Court’s balance sheet has changed since 2018 with the appointments of former President Donald Trump, who have voted more conservatively. Roberts joined Judges Stephen Breyer, Sonia Sotomayor and Elena Kagan in their disagreement over Texas law, but their vote did not make theirs the majority opinion.
“Judge Roberts is no longer the swing vote,” Smith said. “I don’t think there’s a swing vote.”
Recognizing that it was “possible” that one of the judges appointed by Trump could side with liberal-leaning judges, Smith said, “There is no indication that anyone is going to sway.”
Sepper posed that judges could openly overthrow Roe or do so in a “cunning and silent” manner, as if changing a standard that opens the door to more restrictions and prohibitions.
Possible political repercussions
While the door has certainly been opened for state lawmakers to ban abortion, some argue that they may not want it because of the possible political repercussions.
A 2019 ABC News / Washington Post poll showed that most Americans supported the right to abortion, so lawmakers could face the reaction of voters if they actually banned it.
Many conservative lawmakers have introduced bills restricting abortion, knowing they would probably never go into effect because they were unconstitutional, Sepper added.
“Therefore, these legislators earned the merit of anti-abortion activists for passing laws, but they did not have to face the electoral consequences of having banned abortion or denying emergency care to abortion, ”he said. “The fact that they may soon face these political repercussions is something they will have to think about.”
Texas Gov. Greg Abbott is already facing backlash over the lack of exceptions to the new law in cases of incest or rape.
One way to express voter disapproval is to protest, and while there have been some demonstrations about Texas law, Smith said he is surprised there are no more.
“And I’m not sure why not, except that people get the idea that this is just a process,” he said. “If Dobbs gets the way anti-abortionists want it, if Roe is dumped on Dobbs, maybe people will wake up and take to the streets. But you know, if you’re in a red state right now, you better be careful.”