The handwriting is on the wall: Supreme Court’s Texas anti-abortion ruling is a blow to Roe v. Wade

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Abortion rights activists carry cutouts of Supreme Court justices outside the Supreme Court as it prepares to hear a case out of Mississippi that could challenge the law on abortions on December 1, 2021, in Washington, DC.

 Matt McClain/The Washington Post via Getty Images

On first glance, it would be easy to see the Supreme Court’s decision Friday in Whole Woman’s Health v. Jackson as a win for abortion rights. It would also be wrong.

More than two months after the Supreme Court allowed SB 8, a Texas law that effectively bans abortions after the sixth week of pregnancy, to take effect, the Court followed it up with a 5-4 decision that is an even larger defeat to proponents of abortion rights, and a victory to anti-abortion lawmakers in Texas.

The specific question in Jackson is whether abortion providers are allowed to bring a federal lawsuit seeking to block SB 8. Although Justice Neil Gorsuch’s majority opinion technically answers this question in the affirmative, it permits suits only against state health officials who play a very minimal role in enforcing the law. It does not allow suits to proceed against the Texas state officials who play the biggest role in enforcing SB 8: state court judges and clerks.

The upshot of this decision is that, while the abortion provider plaintiffs in Jackson may be able to get a federal court order declaring that SB 8 is unconstitutional, the only real relief they are likely to win is an order preventing a few state health officials from carrying out the minor role they plan in enforcing the law. The most important provisions of the law — the ones that effectively prevent anyone from performing an abortion after the sixth week of pregnancy by threatening them with financial ruin if they do so — will most likely remain in effect.

Though procedural sophistry, Gorsuch and the other justices who joined his opinion engineered the outcome Texas wanted. The state devised a scheme to evade judicial review, and five justices just blessed that scheme.

• The Court heard a previous case against the enforcement of the law in September; opponents had requested an emergency injunction to prevent it from taking effect, which the Court failed to grant, claiming opponents had failed to show that their case would “succeed on the merits,” and that the litigant would be “irreparably injured absent a stay.” That case, like the DOJ’s suit, has nothing to do with the substance of SB 8 itself and whether it’s constitutional; that remains to be decided. [AP / Mark Sherman]