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How The Supreme Court Reached The Decision To Uphold Texas' Law Restricting Abortion


The Supreme Court's conservative majority tossed a legal bomb into the abortion debate last night. In a 5 to 4 vote, justices upheld, for now, a Texas law banning abortions after roughly six weeks. And they reached this decision without a full briefing or arguments before any court. NPR legal affairs correspondent Nina Totenberg reports.

NINA TOTENBERG, BYLINE: The court majority, including the three Trump appointees, emphasized that it was not ruling on the issues presented in the case. Still, it refused to block the law from going into effect for procedural reasons. The unsigned court order was just one extensive paragraph long. Chief Justice John Roberts, who's dissented from every major decision expanding abortion rights, disagreed this time. He called the Texas law unprecedented because it not only banned abortions after about six weeks, but delegated enforcement powers to the general populace at large.

For nearly a half century, since Roe v. Wade, the Supreme Court has consistently upheld the right to terminate a pregnancy prior to the fetus being able to survive outside the womb generally 22 to 24 weeks. The court majority's decision to leave the Texas statute in place has provoked widespread criticism because the law was written to prevent review by the courts. Instead of placing enforcement in the hands of state officials, the law delegates to any individual the right to sue for money damages a clinic or any person who aids or abets an abortion after six weeks. Villanova University's Michael Moreland, who identifies himself as a pro-life law professor, notes that the law is not just bizarre in his words, but broad.

MICHAEL MORELAND: There are all kinds of uncertainties in this statute. It even at one point has a provision that you can bring a claim if you know that someone intends to procure an abortion or aid or abet one.

TOTENBERG: Indeed, anti-abortion groups are already asking on their websites for tips about those who are aiding or abetting abortion in violation of the state law. Just how far the language of the statute may reach remains unclear, but it could possibly include family members or a receptionist at a clinic or someone who drives a patient to a clinic, even perhaps an out-of-state doctor who via telemedicine prescribes abortion pills. Cornell law professor Michael Dorf observes that the public enforcement provision of the law could have some ugly consequences.

MICHAEL DORF: The creation of a kind of Stasi or, you know, East German-type society in which everybody is informing on everybody else.

TOTENBERG: And all of this comes in the context of a far more traditional attack on the court's abortion precedents - a showdown with a new conservative supermajority at the Supreme Court this year. In the next couple of months, the court is scheduled to hear a direct challenge to Roe v. Wade in a case testing the constitutionality of a Mississippi law banning abortions after 15 weeks. That law, like dozens of other similar laws restricting abortion rights, was blocked by the courts because it violated Roe and other Supreme Court precedents and because, unlike the Texas law, the state enforcement regime was carried out by state officials. University of Texas law professor Stephen Vladeck maintains that by leaving the Texas law in place, the Supreme Court majority rewards cynicism.

STEPHEN VLADECK: It rewards states not just thumbing their nose at the Supreme Court substantively, but using procedural tricks to make it hard for the Supreme Court to actually get to the unconstitutional substance of what the state's doing.

TOTENBERG: Stay tuned as the stakes this year get higher and higher.

Nina Totenberg, NPR News, Washington. Transcript provided by NPR, Copyright NPR.

Nina Totenberg is NPR's award-winning legal affairs correspondent. Her reports air regularly on NPR's critically acclaimed newsmagazines All Things Considered, Morning Edition, and Weekend Edition.