By Aron Solomon
With the eyes of the nation and the world on the Supreme Court right up until midnight last night, the course of action the Court chose was inaction. As of 12:01 this morning, the Texas 6-week “fetal heartbeat” abortion ban took effect, essentially making abortion illegal in all practical terms.
Why did the Court do nothing? The very short answer is because it might have been the best legal path for them to follow.
While this is justifiably seen as a major setback for pro-choice advocates in Texas and every other state of the union, the Supreme Court’s inaction comes as no surprise to many observers of the Court’s business.
During the upcoming term, beginning in October, the Court is set to completely revisit abortion rights in the United States. Viewed within this historical context it’s easier to understand why the Supreme Court chose not to grant injunctive relief to fundamentally freeze Texas SB8, the abortion law at issue.
Back in May, the Surpeme Court agreed to revisit the most fundamental of abortion questions – whether states can ban abortions before a fetus can survive outside of the womb. The case they will review is from Mississippi and involves whether the state’s ban on the vast majority of abortions after 15 weeks of pregnancy is constitutional. In accepting this case, the Court will truly review and protentially revise both Planned Parenthood v. Casey as well as Roe v. Wade – the foundation of the nation’s abortion laws.
Today, the nation, the world, and social media are moved by the nature of SB8 – a law that bans abortion after six weeks of pregnancy and essentially puts a $10,000 bounty on the head of anyone who assists the provision of an abortion.
With this contextual framing, it’s no surprise that the United States Court of Appeals for the Fifth Circuit chose to do absolutely nothing here. SB8 is the equivalent of catching a hot coal in your mouth just before a decision is made as to whether you would ever need to catch hot coals in your mouth. The obvious choice is to let that coal drop to the floor, as the Fifth Circuit did.
Using the same not-so-eloquent analogy, the Supreme Court has already said that they’re going to make a decision about all of the hot coals. Deciding the fate last night of one of these coals was more than likely seen by the Court as both bad strategy and bad policy.
We can expect the same over the upcoming months with any SB8 clones from other states receiving the same lack of attention.
As the demonstrations begin this morning in Texas and across the nation, the outrage is palpable and understandable. But while SB8 is no doubt a significant battle, the war to determine whether the Constitution still recognizes a woman’s right to terminate her pregnancy by abortion is just a few months away.