We Can Now See the Playbook for Overturning Roe v. Wade

After Monday’s Supreme Court oral arguments, the writing seems to be on the wall for Senate Bill 8, the Texas law that bans abortion starting about six weeks after a person’s last menstrual period and that hands enforcement to private citizens. It now looks as though two conservative justices may flip on the Texas law and put it in jeopardy — while clearing the way for the ultimate goal of overturning Roe v. Wade next year.

S.B. 8 looked for a while like a kind of Faustian bargain between the Supreme Court’s conservative supermajority and state legislators: The justices could all but eliminate abortion access in Texas without inciting the kind of political backlash for conservatives that seems likely to come from openly reversing Roe v. Wade. And Republican state lawmakers could rally base voters (a key strategy for today’s G.O.P.) and soothe anti-abortion leaders in the state, including self-proclaimed abortion abolitionists, who have accused some Republicans of being weak on the issue. S.B. 8 allowed the state to appease these activists by banning abortion well before the point of fetal viability — which is unconstitutional under Roe — without the risk of losing in federal court and having to pay attorneys’ fees.

At this week’s arguments, it certainly sounded as if most of the conservative justices were no longer interested in such a deal. But it’s not because they are sympathetic to abortion rights. There are strong reasons to believe that the justices calculated that they need political cover for overturning or badly damaging Roe v. Wade later this Supreme Court term — and this Texas law just might give it to them.

To understand the various dynamics at play, it’s important to look more closely at why the justices might not like the Texas law as a vehicle to undermine abortion rights, especially when a major Roe-targeted case will be argued before them in early December. S.B. 8 is the result of conservatives’ decades-long quest for a bulletproof abortion ban — one that’s exceedingly difficult, if not impossible, to challenge in federal court.

In recent years, some states relished the thought of passing blatantly unconstitutional laws tailor-made for this Supreme Court. Texas, by contrast, forked over more than $2 million in attorneys’ fees after losing a 2016 Supreme Court abortion case, Whole Woman’s Health v. Hellerstedt. After that experience, the state’s lawmakers wanted to maximize reward while limiting risk: a ban on abortions very early in pregnancy that no federal court could touch.

State officials got something close to that with S.B. 8. Because of the way the law was crafted, Texas argued that the only way to raise constitutional challenges to it would be after providers were sued — and then only as a defense. Providing abortions would turn into a game of Whac-a-Mole, and many abortion providers, afraid of limitless legal liability, would lose almost by default.

The Supreme Court let S.B. 8 go into effect on Sept. 1 and then wrote a cryptic order explaining that abortion providers might not have a case that belonged in federal court.

During Monday’s oral arguments, though, it appeared that as many as six justices did not see S.B. 8 as so ingenious. Justice Brett Kavanaugh, widely watched as a potential deciding vote in the case, asked whether states could create an S.B. 8-style law going after gun rights or the freedom of religion.

Part of the conservative justices’ seeming hesitation might come down to defending the court’s own power. The justices may indeed plan to gut abortion rights, and soon, but that does not mean that they want to hand states the authority to ignore whichever constitutional protections they wish.

If Justice Amy Coney Barrett and Justice Kavanaugh are leaning toward allowing abortion providers to challenge S.B. 8 in federal court, as they seemed to be on Monday, it will be about politics as much as power. Both justices seem sensitive to popular opinion and political context: Justice Barrett recently felt the need to proclaim in a speech that the justices are not “partisan hacks,” while Justice Kavanaugh clearly has a desire to be respected by his intellectual peers and an awareness of the potential institutional consequences of his decisions.

The Supreme Court’s reputation has taken a nosedive, dipping almost 20 points over the course of a year. In addition, a record percentage of Americans think that the court is too conservative. It is easy to see why. The court is tackling one culture-war issue after another, from abortion to guns and back again — and climate change, too.

As far as abortion goes, all evidence suggests that the conservatives on the court are gunning for Roe. If they overturn the 1973 ruling, they would eviscerate a decision that a majority of Americans say they support and dismantle a compromise — abortion is legal, but it’s restricted — that many Americans seem to like.

So if the court’s conservative justices decide to let abortion providers sue in federal court, that is not necessarily a sign that they’ve gone soft on Roe. Instead, they may want a way to go after Roe v. Wade in the near future without giving up on the narrative that they are above politics. They have already teed up a case out of Mississippi, Dobbs v. Jackson Women’s Health Organization, that will address whether states can ban abortion before fetal viability — or whether there is a right to abortion at all. Oral arguments in that case are scheduled for Dec. 1, with a decision expected next June.

It may turn out that the court’s conservative justices, just like Texas lawmakers, would rather skirt accountability. They want Americans to believe that if Donald Trump all but promised an end to Roe and the Supreme Court justices he appointed deliver just that, partisan politics will have had nothing to do with it. And handing Texas a loss over S.B. 8 might make that fairy tale a bit more believable.

Mary Ziegler is a professor at the Florida State University College of Law in Tallahassee.

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