September 20, 2021

What's Going On With Roe?


  • On September 1, the Supreme Court declined to issue an injunction against Texas’ new abortion law, allowing it to go into effect.
  • Since then, there has been a tremendous amount of confusion about the constitutional status of abortion restrictions, including incorrect assertions that Roe v. Wade has been overturned.
  • If the court ultimately overturns Roe, it will be in a future ruling, and possibly as soon as the term starting next month in a case involving a Mississippi abortion restriction.

In the wake of the Supreme Court’s denial of an injunction against Texas’ new abortion law, some commentators on the left declared that the court had overturned Roe v. Wade. That is not the case. Understanding why requires a more in-depth understanding of both how the Supreme Court works and what the Texas case and Roe v. Wade are specifically about. The bottom line is that while prognosticators might think the Texas case hints how the justices would split on overturning Roe, the Texas case did not overturn Roe. Until the Supreme Court actually overturns Roe, it remains the law of the land, binding the federal government, lower courts, and state governments.

Roe v. Wade and PLanned Parenthood v. Casey

In a nutshell, Roe v. Wade created the constitutional right to abortion in 1973; and in 1992 Planned Parenthood v. Casey established the current “undue burden” test for whether laws, rules, or regulations violate that right. Subsequent cases at both the Supreme Court and circuit court level have mapped out some of the boundaries of the undue burden test but have not fundamentally altered the basic constitutional right or the undue burden test.

Understanding Roe requires first understanding the Fourteenth Amendment, which is the purported source of the constitutional right to abortion. The Fourteenth Amendment was adopted in 1868 as a response to southern states that had enacted repressive laws against Black Americans. The amendment did several things to stop repression, including guaranteeing that all citizens would have “equal protection of the laws” and that no state can “deprive any person of life, liberty, or property, without due process of law.”

Obviously, the phrase “without due process of law” imposes procedural requirements. For example, states must give some opportunity for a person to be heard before seizing their property. The controversy over the due process clause arises from the hotly-contested theory that there are some non-enumerated rights that are so fundamental that the “due” level of process is essentially infinite – no amount of process can justify infringing the right. This theory is called substantive due process.

In Roe, the Supreme Court held by a 7-2 margin that one of the substantive rights protected by the due process clause is a pregnant woman’s right to decide to have an abortion. Specifically, the court held that states could not prohibit any abortions during the first trimester. In the second trimester, states could regulate abortions in ways reasonably related to maternal health. In the third trimester, states could proscribe abortion altogether except when necessary to preserve the life or health of the mother.

In 1992, the court revisited Roe in Planned Parenthood v. Casey. The controlling plurality opinion upheld “the essential holding” of Roe. Instead of delineating abortion rights on trimester lines, it focused on viability of the fetus. Before viability, abortions could not be outlawed. After viability, the state could justify a legislative ban on non-health related abortions. The court pegged viability at “23 to 24 weeks” or, if technology advanced, “at some moment even slightly earlier in pregnancy.” In addition, restrictions outside of outright prohibition of abortion also violate the Constitution if they impose an “undue burden” on a woman’s right to get an abortion.

The Texas Case

The recent Texas case, Whole Woman’s Health v. Jackson, involves a very different kind of abortion restriction. Texas’ law explicitly prohibits enforcement by the state, but allows private citizens to sue a person who performs an abortion after roughly six weeks of pregnancy, “knowingly engages in conduct that aids or abets the performance or inducement of an abortion,” or “intends” to do so.

The plaintiffs in the case were a coalition of abortion providers and their patients, and the defendants were a variety of private citizens and state and local officials who would likely be involved in a private lawsuit, including a county clerk and state judge. The plaintiffs sought an injunction that would stop any lawsuits filed under the Texas law.

The Supreme Court denied the application for an injunction by a 5-4 vote, specifying that procedural flaws meant the plaintiffs were not sufficiently certain to win their case. The majority noted that “federal courts enjoy the power to enjoin individuals tasked with enforcing laws, not the laws themselves,” and that it was unclear whether the defendants in the lawsuit would actually seek to enforce the law against the plaintiffs. Each of the three liberal justices and Chief Justice Roberts filed a separate dissent.

Roe Is Not Overturned Until it is Overturned

Understanding the process of overturning a Supreme Court precedent helps explain the varying reactions to the Texas case. Clearly, the Supreme Court did not literally say that Roe v. Wade had been overturned. The majority repeatedly stated that it was not ruling on the substance of the law.

As a matter of prediction, some people think the decision signals the court will soon overturn Roe or Casey because in the Texas case the court refrained from striking down a law that allows placing a significant burden on obtaining an abortion before viability. The theory seems to be that the Supreme Court was foreshadowing its future decision about the constitutionality of the law because it did not ignore procedural issues to enjoin the law. The commentators seem to infer that the court would have ignored the procedural issues if the court viewed the merits differently. If states believe the Supreme Court will ultimately uphold abortion restrictions that substantively contradict Roe, the theory goes, states will pass more abortion restrictions. In that view, the Texas case constituted a de facto overturning of Roe while we await the de jure overturning that would arise in a future case.

So far, this is mere reading of the tea leaves. Without any contradiction of its September 1 ruling, the court could eventually resolve the procedural and substantive questions in the Texas case in favor of the plaintiffs. The September 1 order noted that briefing “raised serious questions regarding the constitutionality” of the law. It also ignores several rulings in state courts enjoining the law. Until there is an actual overturning of Roe in a future case, lower courts remain bound by Roe and Casey. Presumably, once someone actually files a lawsuit against someone who performed or assisted an abortion under the Texas law, the defendant in that case would be in a procedural position to raise the substantive constitutional defenses that did not factor into the Supreme Court’s decision.

Whether the Supreme Court actually overturns Roe will be decided in some other case. The soonest opportunity for the court to do so is likely Dobbs v. Jackson Women’s Health Organization, the oral arguments for which will occur on December 1.

Issue Tag: Judiciary