Last week, after a 5-4 vote, the Supreme Court of the United States declined an emergency request to block a new law in Texas that effectively bans abortion after six weeks – earlier than many women know they are pregnant. Unusually, the law is not enforced by criminal prosecutions, but rather by empowering members of the public to sue abortion providers and those who “aid and abet” a person seeking one.
In response, the U.S. Department of Justice recently filed a lawsuit aimed at preventing the law’s enforcement. These and other cases will now likely make their way through the lower court system, and in the meantime, access to abortion is severely restricted in the state. While anti-abortion activists have cheered recent events, advocates for reproductive rights agonize that the law – and the Court’s ambivalence – signals an inflection point in the battle over Roe v. Wade (1973).
Shayna Medley ’17, lecturer on law at Harvard Law School and reproductive rights litigator, spoke to Harvard Law Today about the law’s unusual construction, its impact on women, and what she believes it means for abortion access in Texas – and the future of Roe.
Harvard Law Today: What does the Texas law say, and how does it differ from anti-abortion measures that have been passed in other states in recent years?
Shayna Medley: The Texas law that went into effect on September 1 bans abortion after six weeks’ gestation, which is the first time that a ban on abortion before the point of viability has been allowed to go into effect since Roe. Courts have debated the constitutionality of a variety of regulations on abortion, but lower courts have previously been consistent and unanimous in striking down outright bans on abortion before the point of viability, which is the constitutional line that the Supreme Court drew in Roe and reaffirmed in Planned Parenthood of Southeastern Pennsylvania v. Casey. Several other states have passed pre-viability bans at varying gestational ages, but they’ve all been enjoined by lower courts and found unconstitutional under Supreme Court precedent.
The Texas law is the first to go into effect, and it’s unique from the others in that it is designed to deputize private citizens to enforce it. That means that anyone – such as individual anti-abortion vigilantes – can sue anyone that they suspect has either provided an abortion after six weeks or aided and abetted the performance of an abortion after six weeks. The possibilities of who could be sued are potentially limitless: people who provide funds for people to seek abortion, people who give rides to people for appointments, abortion clinic staff, including front desk employees. And the law allows people, if they are successful in their civil suits, to be awarded $10,000 per person that they sued. So this is why we see a lot of people referring to this law as a “bounty hunter law,” because it incentivizes people to go after people that they suspect to have had an abortion to get a cash reward.
HLT: Could you explain what happened last week when the Supreme Court refused to block this law?
Medley: The Supreme Court ruled on an emergency motion, which came up through the lower courts. After the law was passed, abortion clinics sued in federal district court challenging the law’s constitutionality. The District Court was going to hold a preliminary injunction hearing, but before it did that, it denied a motion to dismiss that the defendants had filed. And that meant the defendants could appeal that motion to dismiss to the Fifth Circuit, which reversed the district court’s decision. So then the clinics were in a position of having to file an emergency appeal to the Supreme Court a day or two before the law was scheduled to go into effect, essentially asking the Court to press pause and issue an injunction preventing the law from going into effect while the lower court proceedings continued. What happened was that the Supreme Court first declined to issue an order before that deadline, so the law went into effect at midnight on September 1. The Court did finally issue a decision about 24 hours later, and in a five to four ruling, it denied the plaintiffs’ motion for emergency injunctive relief. In sum, the Supreme Court allowed a clearly unconstitutional abortion ban to take effect while the litigation continues to play out at the normal pace in the lower courts.
HLT: The construction of the Texas law is unusual, isn’t it? Why did legislators write the law this way?
Medley: Yes, Texas intentionally crafted the law this way in an attempt to insulate it from legal challenge. Because the enforcers are private citizens, it’s difficult to figure out who to sue or who might have standing to sue over it. But as Justice Sotomayor pointed out in her dissent in the recent order, by failing to enjoin the law, the Supreme Court is essentially rewarding Texas for attempting to circumvent the Constitution by creating this law with procedural complexities.
HLT: Could this enforcement mechanism – through lawsuits rather than state action – become a model for other laws, and if so, could you give some examples?
Medley: I’ll first start by saying there is still some state action involved, because the law requires state courts to enforce this law. So that’s why state judges and clerks and state actors, like the medical board, were defendants named in the suit that has already been filed. But by allowing this type of law to go into effect, the Supreme Court sent a signal to other states to follow Texas’ lead. There are a number of states that will absolutely jump at any chance to ban abortion if they can; a number of states have trigger bans on the books if Roe is overturned. You can expect many of those same states to attempt to model similar anti-abortion laws after Texas’ law. And in fact, several lawmakers from a handful of states have already made comments saying that they intend to follow suit.
In terms of whether laws modeled like this might come up in in other contexts beside abortion, we could certainly envision a number of ways in which other laws could be structured like this — “bounty hunter” provisions for enforcing illegal gun ownership, for example. It’s hard to see a limiting principle to this type of law. In reality, though, abortion is often unique, both in terms of the egregious and creative nature of the laws passed to restrict it, and also in terms of what restrictions courts are willing to uphold. It remains to be seen whether something like this would actually happen in a context outside of abortion.
HLT: Elena Kagan, in her dissent last week, criticized the Court’s “shadow docket,” which has come under fire a lot recently. What does she mean by “shadow docket,” and how else should this have been handled?
Medley: The shadow docket is a term used to refer to orders that the Court issues without full briefing and argument. In theory, it is a good thing: it’s a process that is supposed to allow the Court to intervene in emergency situations to prevent harm from happening while issues are litigated in courts below. For example, it can be used to stop executions before they happen while an appeal is pending. What Justice Kagan is referring to is the Court’s recent use and abuse of the shadow docket to decide incredibly important constitutional issues and actually take away civil rights without the normal case procedures. The shadow docket cases don’t have the benefit of a full lower court record. They don’t go through a full briefing or argument, and the Court can issue orders with little to no legal reasoning. Recently, the Court has used the shadow docket to reinstate Trump’s Mexico migration detention policy, to stop Biden’s eviction moratorium, and now to allow Texas’ abortion ban to go into effect – the practical application of which flouts decades of Supreme Court abortion precedent by allowing a pre-viability ban to go into effect.
HLT: What is the impact of this law on women in Texas, now that it is in effect?
Medley: I can’t speak for the experiences of people in Texas, but I can speak a bit about what we know about access. A six-week ban on abortion bars approximately 85 to 90% of abortions. At six weeks, most people don’t know that they are pregnant. So it amounts to a near total ban on abortion in the state. A small number of clinics in Texas are still providing within those parameters of the law, but the majority of people who need access will either be forced to travel out of state, self-manage their abortions, or be forced to carry a pregnancy to term against their will.
Texas is the second largest state in the country, so people will have to travel hundreds of miles to get to the nearest clinic in another state, and neighboring states are also ones with many restrictions and a limited number of clinics. Some clinics are already reporting seeing a large surge in patients coming in from Texas. Those states often also have waiting periods or a “two-trip” requirement, and beyond that, clinics have limited capacities. We can expect that those clinics will continue to be overwhelmed.
I think we’re going to see the impact foremost on low-income people and people of color. People with means will always be able to find some way to travel and access abortion care, but it is going to really impact low-income people in the state and people of color who are not able to access that kind of care. Self-managed abortion through medication is much safer and accessible now than it has been in the past, but people continue to face prosecution and criminalization for doing so, and people who don’t have access to information about safe self-managed abortion may resort to unsafe methods. And of course, there will be people who are forced to carry their pregnancy to term and grapple with the violations of their bodily autonomy and the physical, mental, and economic impacts of childbirth and childcare.
HLT: You mentioned before that you believe this law is in violation of Roe v. Wade. What do you think will happen next with the law?
Medley: I think it remains to be seen what happens with the law, because there are a lot of moving parts. As I mentioned, the federal court challenge on which the Supreme Court declined to issue emergency relief will continue in the normal course in the Fifth Circuit. There have been a couple of other state court lawsuits that have obtained injunctions against individual groups from enforcing the law, and the Department of Justice recently filed suit to prevent enforcement of the law. There is also another case in the Supreme Court’s pipeline that is a direct challenge to Roe, Dobbs v. Jackson Women’s Health Organization, which is going to be argued this upcoming term and will likely get a ruling from the Court sometime next year. So all of those things are currently in the pipeline.
In terms of what happens next from a non-legal standpoint, people are organizing and will continue to organize. Since the impact of this decision, people are fundraising for abortion funds to help people travel and access care out of state. People are also helping to clog and shut down the bounty hunter websites [where members of the public were asked to report violations of the Texas law].
HLT: As you mentioned, the Supreme Court is set to hear another abortion case this upcoming term. Do you have any predictions for what will happen with that case?
Medley: Jackson Women’s Health is a challenge to Mississippi’s 15-week ban on abortion, which is also a pre-viability ban on abortion, and a direct challenge to Roe. The state of Mississippi has already submitted its brief, and it explicitly asks the Court to overturn Roe. The Court will hear argument in that case later this term, and we’ll expect a decision on it sometime next year.
I think it’s difficult to say what the recent Texas decision will tell us about Jackson Women’s Health. The order was a shadow docket order; it makes no mention of Roe or Casey in its discussion. So in that sense, it doesn’t do much to predict whether the Court will formally overturn Roe in this Mississippi case. But by permitting the six-week ban to go into effect in Texas and refusing to step in, the five justices in the majority have signaled how little they care about people’s constitutional right to abortion and people’s lived experience trying to access that right in this country.