Danger in the shadows: Supreme Court uses shadow case to threaten abortion rights

By an unsigned one paragraph ruling, the Supreme Court authorized the evisceration of Roe deer without any constitutional analysis. The shadow role of the Supreme Court can no longer be denied.

A view of the Supreme Court at dusk on January 31, 2017. Many were stunned by the Court’s inaction when it rendered its decision on the Texas anti-abortion law. (Drew Angerer / Getty Images)

Shortly before midnight on September 1, the Supreme Court issued an unsigned opinion of a paragraph authorizing the ban on abortion in Texas SB 8 – otherwise known as the “Texas Heartbeat Act,” which essentially prevents the access to abortion in Texas while technically preserving Roe vs. Wade and Planned Parenthood v. Casey. In other words, the Supreme Court authorized the evisceration of Roe deer without any constitutional analysis.

With this ruling, the Supreme Court‘s so-called shadow case can no longer be denied, nor its increasingly unusual form of judicial review. Both raise concerns about the rule of law and independent judicial review, not to mention the legitimacy and credibility of the United States Supreme Court.

In recent years, the Court has rendered more and more decisions on pressing civil liberties issues without providing the American public with the benefit of a written and signed opinion. In his 2019 Harvard Law Review essay, “The Solicitor General and the Shadow Case,” Stephen I. Vladeck, a professor at the University of Texas Law School, called attention to the growing engagement of the Supreme Court with this phantom case. Vladeck followed what he worryingly described as a “significant volume of summary orders and decisions that the court delivers without a full briefing or pleading.”

The corruption of the judicial review process as well as the underlying crisis in American democracy, including a myriad of successful voter suppression efforts in Texas and other states, create inordinate obstacles to governance and fair elections.

In Texas, where women make up over 50 percent of the population, men make up nearly 80 percent of the state legislature. Plus, while White Texans make up just over 40 percent of the state’s residents, they hold two-thirds of the seats in the Legislature.

Texas’ anti-abortion law – and the Supreme Court’s astounding inaction when candidates challenged the law – highlights this crisis in democracy. In Whole woman’s health c. Jackson, the challengers appealed to the Supreme Court to grant an injunction to prevent the law from coming into force. In their unsigned order, five Conservative judges dismissed the request, while acknowledging that the “applicants[…]have raised serious questions regarding the constitutionality of the Texas law in question ”.


This article originally appeared in the Fall 2021 issue of Ms. Join Today to read more stories like this in print and through our app.

Rather than address these serious issues, which seriously undermine abortion rights in Texas, the majority obscured, saying that “complex and novel procedural issues” precluded court intervention, meaning that applicants had failed to meet a standard for his examination. Further closing the door to plaintiffs relief, the 5-4 majority postulated that “it is not clear whether the defendants named in this lawsuit can or will seek to enforce Texas law against the plaintiffs. ‘in a way that could allow our intervention “.

Women’s rights defenders are right to be outraged. Reproductive rights, once seen as a hallmark of late-20th-century American democracy, may soon give way to conservative states that enact unconstitutional anti-abortion provisions with procedural barriers so tightly and intelligently intertwined that the ability to challenging them may be inaccessible, including at The Supreme Court. SB 8 is a model for successful gerrymandering and the eviction of abortion rights.

Texas law prohibits abortions after six weeks of pregnancy – a period during which most people will not yet be aware of their pregnancy – and allows citizens to enforce its general provisions against providers, companies, etc. insurance and anyone found to “assist or encourage” an Abortion.

Such an extreme law directly contravenes the spirit of Roe deer and the legal standards established in Planned Parenthood v. Casey, which affirmed “a woman’s right to choose to have an abortion before viability and to obtain it without undue interference from the state”.

Sadly, anti-abortion legislation like this Texas law can become less and less surprising given what appears to be a green light from the conservative majority that now controls the Supreme Court. The result of the court’s shadow record opinion is not just the end, in essence, of the legal right to abortion in Texas – it sets in motion a workable model for all other conservative state legislatures bent on remove abortion rights.

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