Opinion: The Supreme Court takes an ominous step on abortion

The Supreme Court takes an ominous step on abortion

Editorial Board

A woman walks by the Woman to Woman Health Center in downtown Dallas on Sept. 2. The Supreme Court allowing a new Texas law that bans most abortions has Republicans eager to pass identical measures across the country. (LM Otero/AP)

“Roe v. Wade began in Texas, when a Dallas woman sued to obtain an abortion in 1969. Antiabortion crusaders hope that the state also will be where women’s right to choose whether to have an abortion meets its end. A split Supreme Court permitted Wednesday a breathtaking infringement of Texas women’s abortion rights to come into effect, credulously embracing a cynical legal ploy the state used to evade judicial scrutiny and effectively ban abortion within its borders.

Ever since President Donald Trump stacked the Supreme Court with three new conservative justices, right-wing legislatures such as Texas’s have been passing restrictions that do not quite ban abortion but come extremely close. They are hoping the court will allow them to restrict abortion by increments, hollowing out Roe until abortion is difficult or impossible to access in much of the country. They have passed laws that restrict abortion as early as six weeks — too soon for many women even to know they are pregnant.

The Texas legislature added a cynical twist to its six-week ban, empowering private citizens rather than state officials to enforce it. Under the statute, antiabortion activists can haul abortion providers into court for assisting in the termination of a pregnancy after six weeks, seeking at least in which the suit’s target participated. This policy, which encourages stalking and vigilantism, was designed to prevent early judicial intervention. Because the legislature tasked no state entity with enforcing the law, abortion rights advocates had no obvious party to sue before it phased in. They tried suing state judges and county clerks, seeking to enjoin them from accepting the paperwork that private plaintiffs would have to file to claim their bounties. This is the petition the Supreme Court rejected Wednesday. Abortion rights groups must now wait until someone brings suit against an abortion provider to challenge the law in court — and then wait for the judicial process to consider the law’s constitutionality. Meantime, abortion will be nearly stamped out in Texas, even if the justices eventually rule that the state’s policy was unconstitutional all along.

This will have immediate consequences: Clinics are turning away Texas women seeking abortions. Many abortion facilities may close waiting for the legal process to conclude. Wealthy Texas women will drive or fly elsewhere to end their pregnancies, while low-income Texans will bear the brunt.

The majority insisted that it was not judging the Texas law’s constitutionality, just the procedure that the courts must follow to consider it. Chief Justice John G. Roberts Jr., who dissented, pointed out that the law’s serious legal issues and the severe consequences of allowing it to phase in should have persuaded the court to keep the law from taking effect until the justices could take a closer look. Instead, a majority of five justices threw up its hands and declared they could do nothing to stop Texas’s evisceration of constitutionally protected abortion rights for an unknown period of time. It’s an abdication of responsibility.”