The Supreme Court heard oral arguments in two cases this Monday, Whole Woman’s Health v. Jackson and United States v. Texas. Both cases involve the constitutionality of the controversial Texas abortion law, SB 8. While the hearing left it unclear how the Court would eventually rule on SB 8, the comments of many justices were an ominous harbinger of what’s to come. Said comments certainly suggest that when the court takes up the Mississippi case Dobbs v. Jackson’s Women’s Health Organization in December, the continuing Constitutionality of Roe v. Wade will clearly be at risk of being overturned—or at least dramatically altered.
SB 8, which was passed and signed into law by Governor Greg Abbot on May 18 and took effect in Texas on Sept. 1, was the first of its kind (although Ohio legislators have proposed a similar bill this week). And it has had an unorthodox trip through the court system. As Mary Ziegler of SCOTUSblog notes, “The litigation surrounding SB 8, the Texas law that bans abortion after about six weeks of pregnancy, has been many things, but never ordinary.”
It is increasingly clear to reproductive rights activists nationwide that Roe, as we know it, has a limited shelf life with this Court.
Unlike the upcoming Dobbs case, which centers on Mississippi’s ban on abortions after 15 weeks of pregnancy, SB 8 used a much more novel approach to achieve much more draconian ends. What makes SB 8 unique is that, instead of just outlawing abortion, Texas effectively granted every citizen the right to sue anyone for up to $10,000 whom they suspect to have “facilitated” an abortion in the state of Texas after the cutoff point, which occurs roughly six weeks after conception (before most people know they’re pregnant), when a “fetal heartbeat,” which is not actually a heartbeat, can be detected. By deputizing their citizens to enforce the law instead of doing it themselves, Texas lawmakers have argued that the state could not be sued for the law being unconstitutional. Texas abortion providers and the United States government both challenged this claim on the grounds that this regulatory scheme deliberately circumvents the usual safeguards for a constitutionally protected right, arguing that Texas judges and clerks should not allow suits to proceed under it.
In a 5-4 decision, the Supreme Court initially refused to issue an injunction to freeze the ban until a full hearing on SB 8’s constitutionality could take place, shocking many abortion rights advocates and leaving the six-week abortion ban in place. However, perhaps due to strong pushback regarding the uncertainty this refusal caused, or because of the implications of the legal approach that Texas took in passing this ban, the Supreme Court decided to push up the hearing on the constitutionality of this case to Monday.
The lawyers defending Texas’s SB 8 often were flustered throughout their defense of this law, with even some of the more conservative justices seeming concerned during questioning that the regulatory scheme may limit the power of the federal courts to rule on the constitutionality of any of the rights the law puts into question. However, during the proceedings this week, Justice Alito let slip a question to Texas Solicitor General Judd Stone that included the phrase, “if Roe or [Planned Parenthood v.] Casey is altered,” setting off alarm bells for onlookers that Roe may indeed soon be altered. This question, which relied on the premise that a law outright banning abortion at six weeks may soon be found to be consitutional, sheds ominous light on how the Court may rule in Dobbs.
Anti-abortion protesters would perhaps be the biggest “winner” if the Court does ultimately decide to overturn Roe. These protesters have been a constant and menacing presence outside clinics throughout the nation. Cassidy Thompson, patient educator and clinic escort coordinator at WE Health Clinic in Duluth, MN, has already noticed a shift in the behavior of these protesters as the uncertainty around Roe has grown. “Immediately after SB 8, we saw no change in the anti’s [anti-abortion protestors]. This was shocking, since we expected it to embolden them significantly,” she said, “Then, as the weeks went on, the anti’s became more and more emboldened. We noticed a focus on more controlling language, switching from phrases like ‘look at your ultrasound’ to ‘don’t murder your baby.’ This is a small shift, but we noticed it. The protestors also felt like they could just do whatever they wanted all of a sudden. We have protesters filming patients’ faces to spray on social media.”
Overturning Roe has, of course, been the goal of a decades-long campaign by the right wing and a constant rallying cry used to galvanize and mobilize the base of the Republican party, especially among Evangelical supporters. Clinic escorts and reproductive choice advocates have long warned that this campaign and the tactics used will not end if Roe is overturned. “They will find other culture war stuff because that is what sells and that is what gets butts in seats and that’s what gets donations. Policy doesn’t get donations anymore, it is just all culture war. It’s not going to stop with Roe, they will find something else,” said Christine, a volunteer clinic escort outside of the EMW Women’s Surgical Center in Louisville, Kentucky, who requested to have her last name withheld for safety concerns.
Clinic escorts have been concerned that the violence of the anti-abortion movement is a canary in the coal mine for further acts of right-wing extremism. Anu Kumar, head of Ipas, an international NGO that works to expand access to contraception and abortion, issued a warning about the kind of fanaticism seen in Texas: “[T]hey are anti-democratic zealots, this is not just about abortion at all.”
Heather Mobley, a clinic escort and defender with Charlotte for Choice, agrees. “Now that they [have abortion bans in Texas], they are starting to target marriage equality. So that does become the concern in those states […] If they don’t have this abortion issue that they have spent 24/7 focused on [they are] going to move to LGBTQ areas and things like that, where we thought things were established,” she said.
In addition to anti-abortion activists expanding their targets, their tactics—from loudspeakers and door blockades to targeted harassment and even physical violence outside of clinics—are also likely to be repurposed and redeployed on other battlefronts.
Justice Sot0mayor specifically questioned from the bench on Monday if SB 8 may lead to states usurping other constitutional rights that they don’t agree with. “[What if the state tried to impose] liability on anyone who officiates, aids, or abets a same sex wedding? How about, [if the state is] dissatisfied with Lawrence v. Texas, [it] subjects private consensual sexual conduct of which it disapproved to the exact same law as SB 8? How about [if] Griswold, the use and sale of contraception, is subject to SB 8 style liability?” Sotomayor asked from the bench. “So this is not limited to abortion. That’s the point that’s been raised. It’s limited to any law that a state thinks it’s dissatisfied with.”
In addition to anti-abortion activists expanding their targets, their tactics—from loudspeakers and door blockades to targeted harassment and even physical violence outside of clinics—are also likely to be repurposed and redeployed on other battlefronts, especially in states where abortion would be outlawed by the overturning of Roe. “It’s the behavior that we have seen at local clinics for years, but people are starting to see it at local libraries and city council meetings. Some of our protesters, either they or their family members, were at the insurrection in January. They have been at the anti-mask rallies, [and] as Critical Race Theory has been [discussed] in school systems, they have been protesting that,” said Mobley. “So yeah, we have definitely seen familiar faces from the clinic at those protests.”
Thompson also thinks that anti-choice protesters will be emboldened to expand their reach if Roe is overturned. “Most anti’s believe that they can close clinics, and this is what drives a lot of their protesting. On top of this, the general ‘victory’ that anti’s will see when Roe is overturned will result in them trying to create change in other aspects of human rights, such as what we’re seeing right now in terms of vaccinations and masks,” she said.
Christine, the volunteer clinic escort in Louisville, agrees that the clinic protesters are unlikely to stop their behavior just because they don’t have an abortion clinic to demonstrate in front of. “They’ll find something to do. Abortion care will still be happening but they aren’t going to have that public spectacle martyr side of it that they love so much, so they will probably move on to something [and somewhere else] where they can [act out] that martyrdom,” she said.
It is unclear when the Supreme Court will issue a ruling on SB 8, or how it will impact the Dobbs ruling, but it is increasingly clear to reproductive rights activists nationwide that Roe, as we know it, has a limited shelf life with this Court. While reproductive rights activists have warned about this possibility for years, they still feel overwhelmed that abortion care is likely about to be severely limited. “It’s wild that we are having to focus so much of our energy on something that should have been established and shouldn’t be up for debate,” said Mobley.
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