One month to the day before the Supreme Court hears arguments on the Mississippi abortion ban that looks likely to lead to the full and official overturning of Roe v. Wade, it heard arguments on two challenges to the even more restrictive Texas abortion ban. Whole Women’s Health v. Jackson and United States v. Texas aren’t seeking to directly overturn the law, which bans abortions after about six weeks’ gestation by putting enforcement in the hands of anyone who wants to turn vigilante and sue people who “aid or abet” an abortion for $10,000 and attorneys’ fees. Rather, they’re seeking to be allowed to sue to get the law blocked.
On that front, a number of experienced readers of Supreme Court tea leaves felt the procedurally dense oral arguments offered some good signs. But with Mississippi’s Dobbs v. Jackson Women’s Health Organization on the horizon, that doesn’t give much reason for true optimism about the future of reproductive rights in the United States.
In September, the three Trump justices plus Samuel Alito and Clarence Thomas allowed SB 8 to go into effect, with an unsigned, one-paragraph order released the day after the law had already gone into effect. Chief Justice John Roberts joined Justices Sonia Sotomayor, Elena Kagan, and Stephen Breyer in dissenting then, and he once again seemed skeptical of the Texas solicitor general’s arguments. There still needs to be at least one more vote if opponents of the Texas law are going to be allowed to challenge it in court—and looks likely that there is one or even two.
Texas’ defense of the law is that abortion providers who are sued can go to state court and argue that their constitutional rights are being violated, but Barrett repeatedly suggested that they may not actually be able to get a “full constitutional defense” that way. Kavanaugh, meanwhile, was worried about guns. Because if the Supreme Court allows a state to evade the scrutiny of federal courts by deputizing anyone and everyone to enforce a law curtailing constitutional rights, then what’s stopping a state strongly controlled by Democrats from passing a similar law about guns? So it’s possible that the right to challenge SB 8 gets up to six votes … but then comes the Mississippi case, which the right-wing justices had already been looking to as their way to overturn Roe.
Even taken in isolation, without the threat of Dobbs, the day’s arguments offer a deeply troubling picture of the Supreme Court. As Elie Mystal summarized it, “the CORE of the Texas argument is that a STATE COURT will find Texas's own law unconstitutional... so somehow that means the Supreme Court should do nothing.” He added, “It’s just a goddamn RIDICULOUS argument.”
And early on in the Whole Women’s Health arguments, Jessica Mason Pieklo of Rewire News made an essential point about what was being left out of the courtroom. “If you want to know why I say abortion law is all about POWER this is what I'm talking about,” she tweeted. “Nobody is talking about the pregnant people needing care right now. We're talking about the power (or lack thereof) of the state and federal courts to enforce or not abortion bans.”
Right-wing judges have the power right now. They’re not overly concerned with how ridiculous the arguments are if they’re arguments for right-wing policies, and they definitely don’t want to be talking about the women whose lives are being affected every day in Texas.