U of M law professor says SCOTUS order ‘functionally ends Roe’

By: - September 2, 2021 7:07 am

U.S. Supreme Court | Susan J. Demas

After days of silence, the U.S. Supreme Court issued an unsigned order early Thursday allowing a Texas abortion ban to go into effect, setting a precedent for other states to pass similar laws. The law, Senate Bill 8, which experts say effectively bans 90% of abortions in the second-largest state of 29 million, went into effect 24 hours prior when the high court didn’t weigh in.

“In reaching this conclusion, we stress that we do not purport to resolve definitively any jurisdictional or substantive claim in the applicants’ lawsuit. In particular, this order is not based on any conclusion about the constitutionality of Texas’s law, and in no way limits other procedurally proper challenges to the Texas law, including in Texas state courts,” the opinion said.

University of Michigan law professor Leah Litman, who has been tracking the case, said that the decision has broad implications.

“The Court didn’t say anything about Roe [v. Wade] in the order, but they didn’t have to: Allowing TX to ban abortions functionally ends Roe,” Litman tweeted Thursday.

Conservative Chief Justice John Roberts sided with the court’s liberal justices and wrote a dissent, as did Justices Elena Kagan. Stephen Breyer and Sonia Sotomayor.

“The Court’s order is stunning,” Sotomayor writes. “Presented with an application to enjoin a flagrantly unconstitutional law engineered to prohibit women from exercising their constitutional rights and evade judicial scrutiny, a majority of Justices have opted to bury their heads in the sand. Last night, the Court silently acquiesced in a State’s enactment of a law that flouts nearly 50 years of federal precedents. Today, the Court belatedly explains that it declined to grant relief because of procedural complexities of the State’s own invention.”

In her dissent, Kagan writes that “without full briefing or argument, and after less than 72 hours’ thought, this Court greenlights the operation of Texas’s patently unconstitutional law banning most abortions.”

“As of last night, and because of this Court’s ruling, Texas law prohibits abortions for the vast majority of women who seek them — in clear, and indeed undisputed, conflict with Roe and Casey,” she adds.

The Supreme Court’s decision comes earlier than expected, as the court in May agreed to hear another case that could end the right to abortion, Dobbs v. Jackson Women’s Health Organization. That’s a Mississippi law banning abortions after 15 weeks.

The Court’s order is stunning. Presented with an application to enjoin a flagrantly unconstitutional law engineered to prohibit women from exercising their constitutional rights and evade judicial scrutiny, a majority of Justices have opted to bury their heads in the sand.

– Supreme Court Justice Sonia Sotomayor

However, abortion rights advocates have been bracing for the landmark 1973 Roe v. Wade decision to be overturned or severely curtailed since Justice Ruth Bader Ginsburg, a women’s rights champion, died late into former President Donald Trump’s term last year. A GOP-majority U.S. Senate quickly replaced her with Trump’s right-wing nominee, Amy Coney Barrett, who has a long track record of opposing reproductive health rights, just before Trump lost the 2020 election.

The Texas law bans abortions as early as six weeks with no exceptions for incest or rape. It allows private individuals to sue anyone who they believe is providing abortions or assisting someone in accessing an abortion, including health care workers, clergies and rideshare drivers. Not only does the law allow for citizens to sue, but it incentivizes it by awarding them at least $10,000 if they are successful. Because the law gives the power to enforce the ban to private individuals, it makes it difficult to challenge the law in court.

The law is seen as a green light for Republicans in other stats to pass similar legislation. Democratic Gov. Gretchen Whitmer would veto any bills the GOP-controlled Legislature would pass, so anti-abortion activists likely would go with a ballot measure. Under Michigan law, the Legislature can approve such petitions and the governor has no power to veto — something Right to Life of Michigan has successfully used for abortion restrictions in the past.

“Reproductive health and rights all over the country have never been at greater risk – what’s happening in Texas makes that painfully clear,” Sarah Wallett, Planned Parenthood of Michigan chief medical officer, told the Advance Wednesday. “Here in Michigan, we face an especially dangerous threat.”


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Susan J. Demas

Susan J. Demas is a 23-year journalism veteran and one of the state’s foremost experts on Michigan politics, appearing on C-SPAN, MSNBC, CNN, NPR and WKAR-TV’s “Off the Record.” In addition to serving as Editor-in-Chief, she is the Advance’s chief columnist, writing on women, LGBTQ people, the state budget, the economy and more. For almost five years, Susan was the Editor and Publisher of Inside Michigan Politics, the most-cited political newsletter in the state. Susan’s award-winning political analysis has run in more than 100 national, international and regional media outlets, including the Guardian U.K., NBC News, the New York Times, the Detroit News and MLive.