Well, it happened. The Supreme Court effectively overturned Roe v. Wade tonight for folks in Texas under cover of darkness That’s right! The biggest abortion rights news in 50 years happened in the shadows
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Instead of issuing a ruling blocking Texas’ 6-week abortion ban from taking effect, the Court did nothing. But in this case, doing nothing is actually doing EVERYTHING. Because by doing nothing, the justices said Roe is no longer good law.
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Wait. How can the justices doing nothing be the same thing as the justices saying something? I’ll explain.
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Texas’ #SB8 bans abortion at 6 weeks. That means it bans abortion well before a fetus is viable. Roe v. Wade says specifically states can’t do that. Doesn’t matter. Texas just did that.
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Now normally when Texas lawmakers try to ban abortion—because they have before!—there’s a big long court fight. It can take YEARS for a case to go from legislation to the Supreme Court.
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And that’s because it takes a long time to develop evidence and go through the arguments. Courts normally take their time deciding big weighty constitutional questions.
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And normally when the Supreme Court is going to do something like overturn—or substantially change—the law it does so after a bunch of briefs and oral arguments. And it does so with a case that is “on the docket.”
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“On the docket” is lawyer-speak for when a court formally accepts a case to resolve. It puts it “on the docket.” The docket is the public record of legal challenges—important for transparency and a healthy democracy!
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It turns out the conservative justices aren’t the biggest fans of transparency, and so they have developed a side hustle—a shadow docket if you will-—and that’s the place where they can wreak havoc outside of public view.
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The Supreme Court has done all sorts of terrible things via the shadow docket—like letting the Biden administration eviction moratorium lapse and now gutting abortion rights law!
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If SCOTUS was interested in upholding abortion rights precedent, it would have issued an order that says basically “sorry Texas, Roe says you can’t ban abortion at 6 weeks. Nice try.” SCOTUS didn’t issue that order.
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And by not issuing that order, SCOTUS signaled that the 6-3 conservative majority has no interest in upholding Roe as precedent. And it did so on the shadow docket.
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You might remember that there actually is a formal challenge to Roe v. Wade “on the docket” for SCOTUS this term—Dobbs v. Jackson Women’s Health Organization. Well guess what? The last 24 hours just told us everything about how SCOTUS plans to rule in Dobbs.
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A lot could still happen this week. The fight in Texas isn’t necessarily a done deal. We’re in the earliest phases of figuring out this new landscape for abortion rights and access, but nobody has you covered like we do over at .
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