Abortion: Four clues the Supreme Court is heading toward a major shift on Roe v. Wade

John Fritze

WASHINGTON – Advocates on opposing sides of the nation's abortion battle don't agree on much, but many read a Supreme Court decision last week about Texas' ban on the procedure after six weeks of pregnancy the same way: as a sign pointing to a potentially major shift in how the court views reproductive rights.

For many observers, it was only the latest clue. 

The high court on Friday left Texas' abortion law in place for the third time. Although the court allowed one challenge to the law to continue, it did so on grounds so narrow that abortion providers in Texas and across the nation quickly sounded alarms.

"This is a dark day for abortion patients and for physicians," said Marc Hearron with the Center for Reproductive Rights, which represents abortion providers in Texas. "It is also a dark day for anyone who cares about constitutional rights."

The Texas case was focused on procedural questions about who could be sued and whether a lawsuit could continue. The nation's highest court is also considering a direct challenge from the state of Mississippi to Roe v. Wade, the 1973 decision that established a constitutional right to abortion. A ruling on Mississippi's law banning most abortions after 15 weeks of pregnancy is expected early next summer. 

Though the two cases are substantially different, the opinion Friday set off speculation about where the court may be heading more generally on abortion. James Bopp, general counsel for National Right to Life, declined to predict the outcome of the Mississippi case but said anti-abortion groups are encouraged by developments. 

"So far, so good," Bopp said. "It's encouraging that five members were able to join together on a majority opinion that applied normal rules to an abortion case."

Demonstrators gather at the Supreme Court on Dec. 1.

Barrett, Kavanaugh muted

When the Texas case was argued in early November, Associate Justice Brett Kavanaugh was among the conservatives who were concerned with how Texas structured the law's enforcement and the broader implications of that approach. 

Rather than outlawing abortion after six weeks of pregnancy and requiring state officials to enforce the prohibition, Texas authorized private citizens to sue providers, nurses and anyone else who helped a person obtain an abortion in violation of the law. Individuals who won such a lawsuit could collect at least $10,000 in damages for each offense.

Opponents of the Texas law have long argued a liberal state could set up a similar structure to limit rights supported by conservatives, such as gun ownership. California Gov. Gavin Newsom, a Democrat, announced over the weekend that he would push to allow private individuals to sue people who sell or manufacture semiautomatic rifles.   

"It could be free speech rights. It could be free exercise of religion rights. It could be Second Amendment rights," Kavanaugh said Nov. 1 during arguments in the Texas case. "If this position is accepted here, the theory of the (gun lobby) is that it can be easily replicated in other states that disfavor other constitutional rights."

Writing for the majority in the Texas case, Associate Justice Neil Gorsuch brushed aside concerns about "this type of law," saying federal courts lack the tools to stop them. 

"Congress," Gorsuch wrote, "is free to provide them."

Kavanaugh and Associate Justice Amy Coney Barrett, both of whom were nominated by President Donald Trump, joined the Gorsuch opinion – choosing not to write separately. That has given a lift to anti-abortion advocates who worried that either of them might join Chief Justice John Roberts on the issue of abortion.

"That they joined that opinion is significant," Bopp said of Kavanaugh and Barrett.  

Roberts in the minority

Long viewed as an "institutionalist" concerned about the perception of the Supreme Court as a political actor, Roberts broke with his conservative colleagues in the Texas dispute and sided with the liberals on a central point. 

Eight justices voted to allow the lawsuit against Texas to continue in lower federal courts against a narrow group of defendants: state officials who license the clinics and who would have to determine whether those facilities violate the law. The court split 5-4 on whether other officials, including state court clerks, could be sued. 

Roberts, joined by Associate Justices Stephen Breyer, Elena Kagan and Sonia Sotomayor, asserted they could be sued. Such an outcome would have blocked Texas' private enforcement mechanism because the clerks would have been barred from docketing the private lawsuits filed against abortion providers under the law. 

Supreme Court Associate Justice Amy Coney Barrett and Chief Justice John Roberts at the Supreme Court on October 01, 2021.

Roberts ended up on the losing side of the argument, which means he was unable to marshal the one additional vote needed to succeed. That highlights a shift on the court from one year ago, when Roberts cast the deciding vote along with four liberals to strike down a Louisiana law requiring doctors who perform abortions to have admitting privileges at nearby hospitals.

What has changed since then? Associate Justice Ruth Bader Ginsburg, who was nominated by President Bill Clinton in 1993, died last year. She was replaced by Barrett

"Abortion rights supporters and abortion providers have been trying to sound the alarm that Roe is under significant threat," said Julie Murray, a lawyer with the Planned Parenthood Federation of America. "If anything, that (Texas) decision certainly confirms that we are in a period of great threat to the abortion right."

Votes aren't there 

An important point sometimes overlooked in the legal machinations during the past year's battle over abortion: The Supreme Court has considered Texas' law three times since September, and each time there were not five votes to block its enforcement.

A 5-4 majority first declined to block enforcement of the Texas ban Sept. 1, roughly 24 hours after it had gone into effect. The nation's highest court agreed in October to hear two challenges to the Texas law, but it again declined to temporarily halt its enforcement while the justices considered legal arguments from Texas, abortion clinics in the state and the Biden administration.   

Although an 8-1 majority allowed the challenge to Texas' law to continue in federal district court last week, there were not the five needed votes to block its enforcement while the case proceeds. Roberts and Sotomayor encouraged a lower federal court to temporarily halt the law, but it's not clear how expansive such an order might be. 

The decision to temporarily block enforcement of a law is different from striking it down, but the two moves are intertwined. Federal courts consider, among other factors, whether a plaintiff seeking to temporarily stop a law is likely to succeed on the merits.  

Kavanaugh on precedent 

Statistically the court's median justice, Kavanaugh was expected by court observers to  search for some limited middle ground in the case of Mississippi's law banning abortion after 15 weeks. But Kavanaugh came out swinging Dec. 1 during oral arguments in that case, offering an impassioned argument for overturning precedent

Justice Brett Kavanaugh was one of President Donald Trump's picks for the Supreme Court.

The high court sometimes gets it wrong, Kavanaugh argued, such as when it sanctioned state-imposed racial segregation in 1896 or when it said in 1905 that states did not have the power to regulate businesses. Those and many other court precedents were overturned in decisions that are widely praised today. Why, Kavanaugh suggested, wouldn't the same hold true for overturning Roe? 

"Those are some of the most consequential and important in the court's history," Kavanaugh said. If the justices back then had worried about precedent in those disputes, he asserted, "the country would be a much different place."

Others countered that in most of the cases Kavanaugh cited, the court overruled decisions to expand rights rather than to limit them. 

"Here, the court would be doing the opposite" if it overturned Roe v. Wade, Solicitor General Elizabeth Prelogar told the justices. It would be telling the "women of America," she said, "that the ability to control their bodies ... is not part of their protected liberty."