Justices sound skeptical of the law known as SB 8 , but the damage has already been done and it could get worse.<\/b>
\nThe right to abortion wasn\u2019t technically at issue today \u2014 yet. The justices were supposed to be considering the procedural question of whether abortion providers and the federal government could sue to block Texas\u2019s six-week abortion ban despite the state\u2019s cute attempt to make that impossible by putting enforcement of the law in the hands of self-appointed bounty hunters. The conservative justices asked a lot of questions about whether that structure could be used against constitutional rights they favor (think guns), and the liberals tried to prod that along. It might work to eventually sink the law. All of Texas\u2019s procedural trickery rankled Kagan, but so did what she pointed out to Texas\u2019s solicitor general Judd Stone: \u201cThe actual provisions in this law have prevented every woman in Texas exercising a constitutional right as declared by this court.\u201d Stone tried to interrupt, but Kagan pressed on. \u201cThat\u2019s not a hypothetical,\u201d she continued. \u201cThat\u2019s actual.\u201d \u201cThat\u2019s just not true, your honor,\u201d Stone insisted. In fact, he said, the number of abortions in Texas clinics have only been cut in half or so. \u201cI\u2019m sorry, you\u2019re exactly right,\u201d Kagan said with unusual derision. \u201cI should have said, every woman in Texas who has not learned and has not made a decision before six weeks.\u201d This was the strange tension of today. What the court does with these two cases matters enormously for people in Texas who are being denied abortions right now, but depending on how the court rules on a Mississippi abortion case it hears in a month, it may not matter much by next year. If we already know exactly the impact of Texas\u2019s law on patients there, it\u2019s because of the Supreme Court itself. For almost 50 years, the Court has never allowed a state to ban abortion before the fetus is viable, at least 24 weeks into pregnancy, but since September 1, when the court refused to temporarily block the law pending challenges, it casually let Texas do so at around six weeks, a stage when many people don\u2019t even know they\u2019re pregnant. The Court\u2019s stated rationale was that the law\u2019s design was too confusing \u2014 was it proper to sue state officials if average people were the ones ratting out Texans for aiding and abetting abortion? Letting the law go into effect in the middle of the night was then, and still is, a puzzling decision, even from the perspective of the Court\u2019s staunchest abortion opponents. The Court had already agreed to hear Mississippi\u2019s ban on abortion at 15 weeks later this term, giving it a chance to cleanly throw out the viability standard and Texas an opening to ban abortion outright without any games. But that is months away from being decided. Right now, the Court\u2019s late-night shadow-docket action has allowed anti-abortion Texans to crow that their law has thwarted more abortions than any other. As Justice Sonia Sotomayor has repeatedly pointed out in her dissents at each turn of this case, \u201cThe State (empowered by this Court\u2019s inaction) has so thoroughly chilled the exercise of the right recognized in Roe as to nearly suspend it within its borders and strain access to it in other States. The State\u2019s gambit has worked. The impact is catastrophic.\u201d 4\/ This law isn’t about legal or procedural gymnastics for us. It’s not theoretical. We are suffering. My neighbors are suffering direct harm. Right now. Today. Yesterday. And no matter what happens hundreds of miles away from us today, we will still be here suffering tomorrow. It seems clear that something has changed since then, and not only in the lives of people impacted by the law. In September, the Court dragged its feet on a Texas abortion provider\u2019s emergency request to block the law and didn\u2019t even bother to respond until a day after it went into effect. But in late October, it rapidly changed course, rushing to hear the case in its regular docket along with the Justice Department\u2019s new challenge, setting today\u2019s argument with less than two weeks\u2019 notice. Is it a coincidence that a Gallup poll conducted a few weeks after the court allowed SB8 to go into effect showed a drop of nine points in the public\u2019s esteem of the Court since July, its lowest-ever approval rating since Gallup started measuring it in 2000? Maybe the backlash got the attention of Justices Brett Kavanaugh and Amy Coney Barrett, both of whom voted to let the Texas law go into effect but sounded genuinely doubtful today. Maybe they are actually troubled by the broader implications of letting states do end runs around the Constitution and realize they can wait until the Mississippi case to straightforwardly end abortion rights in red states. Or maybe both Trump appointees, who were confirmed under various sorts of clouds, understand that the performance of genuinely probing the law heightens the appearance of neutrality. This is my feeling too, but having a hard time reconciling this with how Kavanaugh and Barrett voted when this was first before the Court on the shadow docket https:\/\/t.co\/lAFc6vuBlu There was one justice who spent today\u2019s argument reaching even further afield for hypotheticals. Samuel Alito wanted to know what would happen if a woman who had a botched abortion after six weeks could use the law to sue the doctor who provided it. The question made no sense \u2014 you don\u2019t need a bounty-hunter law to sue a doctor for malpractice \u2014 but it did its own public-relations work, entering into the record in a purportedly procedural case the notion that abortion is dangerous and providers are dodgy. Alito\u2019s uncharacteristically euphemistic part about \u201caltering\u201d decades of legal understanding of abortion rights sounded less like a hypothetical than a threat.<\/p>\n