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A majority on the Supreme Court appears ready to strike down the landmark decision—but they’re not prepared for the ensuing havoc.
About the author: Mary Ziegler is a professor at the Florida State University College of Law. She is the author of Abortion and the Law in America: Roe v. Wade to the Present.
The five justices who upheld Texas’s anti-abortion law in the middle of the night this week insisted that their hands were tied: Texas had invoked sovereign immunity, and abortion providers had not proved that the state was wrong. Above all, the majority warned people not to overreact. Women in Texas might not be able to get an abortion anymore, and abortion providers might have already shut down, but worry not. The Supreme Court had not drawn “any conclusion about the constitutionality of Texas’s law.”
For anyone paying attention, the upshot of this was clear. For starters, Texas lawmakers had not kept their intentions secret: They wanted to ban almost all abortions and skirt the consequences. The law raised “complex and novel” “procedural questions,” according to the Court majority, but only because the law’s designers had homed in on a creative strategy for achieving their goals.
That the Court pretended this wasn’t about the fate of abortion rights tells us that the justices may be ready to strike down Roe v. Wade—but are less prepared for the havoc such a decision would wreak. Reversing Roe would not be a mere part of the legacy of John Roberts’s Court and the justices sitting on it—it would define that legacy.
And it could have enormous institutional and political consequences: Court reform—which remains a matter of abstract inquiry rather than an earnest legislative push—would be more seriously on the table. Pro-abortion-rights voters in 2022 and 2024 could make their discontent known at the polls.
The justices who allowed Texas’s law to go into effect hardly seem to love the thought of that backlash. Their order tried to reassure the public by spelling out what was not being decided—and tried to signal that the Court takes all of this very seriously. And even before this particular question arose, during their confirmation hearings, Brett Kavanaugh and Amy Coney Barrett repeated that when it came to Roe, they would keep an open mind. After all, they are neutral arbiters of the law, not pre-committed ideologues.
The justices desperately want the public to believe that is true, even though similar procedural hurdles did not stop the Court from blocking COVID-19 stay-at-home orders that affected in-person worship, and even though the Court’s overnight order made a laughingstock of what is still supposedly a constitutional right. The message was clear: Texas wanted to pass a legal-consequence-free abortion ban, and the Supreme Court wanted to find a political-consequence-free way to uphold one.
Transparency has never been a hallmark of the Court’s abortion jurisprudence. In 1992, when the Court declined an invitation to reverse Roe, the justices held that states could not unduly burden women seeking abortions. What an undue burden meant was rarely clear to anyone—and often depended on which judge was considering a law. In the years since, the Court has changed the value attached to fetal life—describing the dignity of unborn children—without clearly explaining how this shift has affected abortion jurisprudence.
Anti-abortion leaders blame this opacity on Roe, which they argue is a hopelessly muddled, unworkable decision. The real explanation is present in yesterday’s decision: The Supreme Court may want to reverse Roe, but it is afraid of what will happen when the decision is gone. This fear makes it attractive to hem and haw, to deny and obfuscate. Clarence Thomas may not miss a chance to denounce Roe, but his colleagues are less keen to do so.
The justices will be disappointed to learn that they are not fooling anyone. People in Texas have a clear idea of what is going on—abortion clinics are already refusing to perform most abortions, and people seeking to help loved ones find a doctor out of state or order pills on the internet will wonder if they will face a lawsuit. Red-state lawmakers have heard the message loud and clear. They will pass laws like Texas’s unless they don’t see the need to bother. And that might already be the case: There is little reason to do an end run around Roe if the Court seems ready to reverse it.
The justices may have issued their order in the dead of night, but they cannot hide from this decision. The Court owes the nation a clear explanation about what is happening to abortion rights and why. But if this decision is any indication, the country is unlikely to get one.
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