Rick Hasen, law professor at UC-Irvine, is highly skeptical of the conservative majority’s motivation behind denying the injunction request, calling it a "sleight of hand."
"No, Roe v. Wade was not overruled tonight," Hasen said. "But the ease with which Texas purported to bulldoze the Court's abortion jurisprudence tells you all you need to know about the right to choose before this Court."
In the following article ( twitter @rickhasen ) you will find professor Rick Hasen's explanation on the issues surrounding the Supreme Court's decision not to intervene in Texas's recent abortion law.
A few thoughts from the point of view of Remedies law on the Supreme Court's 5-4 order tonight that has the effect of letting Texas ban all abortions after about six weeks of pregnancy:
The 5-justice conservative majority (Alito, Barrett, Gorsuch, Kavanaugh, and Thomas) offers only a single paragraph of barebones reasoning to explain why Texas can essentially ban all abortions, a law the majority concedes raises "serious questions" about constitutionality.
The majority offers not a single sentence on those merits or on current abortion jurisprudence. One has to turn to Justice Sotomayor's dissent to learn that laws that are an "undue burden" on abortion rights are unconstitutional under current law.
Instead, the majority hangs its hat on two purely procedural arguments. First, the plaintiffs, although making a showing of "serious questions" about constitutionality, didn't meet their burden of showing that the Court can grant any effective relief.
This point requires a bit of unpacking. Texas designed a bizarre system of private enforcement of abortion rights particularly to make it hard for federal courts to craft an appropriate injunction.
The Court says there's not enough evidence now that a private party may sue. And, going to the second procedural argument, it is not clear if a federal court can issue an injunction against state court proceedings enforcing the new law.
The upshot is that the majority points to these "complex and novel antecedent procedural questions" as a reason to decline to intervene right now and to leave the Texas law on the books.
Thus, what the majority is trying to do is to hide behind technical jurisdictional doctrines to make it appear that the Court is issuing a technical opinion not on the merits and kicking the can down the road another day. But this is nonsense.
As the dissenters show with evidence, the Texas law has already had its deterrent effect: most abortion clinics, fearing liability, have now had to stop doing most abortions for fear of violating the law. And the majority knows its ruling would have exactly this effect.
In other words, the majority has said that even if this law is likely unconstitutional, the Rube Goldberg-esque enforcement mechanism that Texas designed for its anti-abortion law has tied the Court's hands.
This claim of complexities ignores a key equitable tradition when it comes to injunctions to preserve the status quo when plaintiffs have a strong claim on the merits of their cases. Indeed, in voting cases, the merits seem to drive most of the results on the shadow docket.
So what's really going on here? Does the Court majority feel powerless or flummoxed by jurisdictional complexities? Hardly. The majority doesn't say it but the real issue is that they believe plaintiffs don't have the right to abortions.
But the majority is not going to say that in this case, so they hide behind the technical arguments which are hard to explain to the public. This is a case on the "shadow docket" without full briefing or oral argument, and in this case development in the lower courts.
The majority would rather have a debate about an old case called Ex parte Young and the power of federal courts to issue orders against state courts than about cutting off the right to abortion in a case that was hardly briefed and not argued.
It's a sleight of hand and no one should fall for it. The upshot of the Court's decision is to allow Texas to use a jurisdictional trick to ban abortion after six weeks, at least for a time, without the Court having to say "Roe v. Wade is overruled."
The opinion provides a fig leaf pretending it is not a judgment on the merits. But the handwriting is on the wall. If the Court took the merits of the undue burden standard or respect for precedent seriously, this case was a no-brainer to stay Texas's law.
No, Roe v. Wade was not overruled tonight. But the ease with which Texas purported to bulldoze the Court's abortion jurisprudence tells you all you need to know about the right to choose before this Court. And the conservative majority can leave the Chief Justice behind.
One more thing: perhaps the liberals delayed issuing this order so they could cite actual evidence that the existence of the Texas law is shutting down most abortions in Texas. Majority cannot say it is conjecture. They say nothing at all about it. Telling.