The U.S. Supreme Court’s decision not to intervene in Texas’ new six-week abortion ban is the latest case to draw scrutiny over the court’s “shadow docket,” where the court makes rulings without hearing oral arguments or fully explaining the reasonings behind its decision.
During a U.S. Senate Judiciary Committee hearing on Wednesday, legal scholars and abortion rights activists argued the nation’s highest court is making big decisions that affect millions of Americans through this method, which breaks from the normal procedure the court usually follows when it considers a case.
Since Sept. 1, Texas has been the only state in the country allowed to enact a law banning abortions as early as six weeks. Abortion providers asked the Supreme Court to block the law, but the court, in an unsigned order, opted to stay out of the issue.
As a result, hundreds of women in Texas have been turned away when seeking the procedure. Many have been forced to either get an abortion in another state or carry an unwanted pregnancy to term.
Democratic state lawmakers and abortion rights groups are now urging Congress to step in to address the issue. The Judiciary Committee's hearing Wednesday focused on the Supreme Court’s decision to let the law stand.
Fatima Goss Graves, the president and CEO of the National Women's Law Center, told the panel of senators the country’s highest court essentially allowed Texas to deny people their constitutional right to an abortion.
“A right without access is a right denied,” she said.
Legal scholars also raised concerns about the court’s increasing reliance on its so-called shadow docket, or decisions made without hearing oral arguments from the parties involved. In these scenarios, the court gives only a cursory explanation behind its ruling.
Stephen Vladeck, a law professor at UT Austin, told the panel of senators the court has been using the shadow docket “to hand down cryptic decisions affecting millions” of Americans.
“Far more often than ever before, the justices are granting emergency relief that either freezes government policies or allows policies that were frozen by lower courts to go back into effect,” he said. “What’s more, they are doing so through unsigned, mostly unexplained, and often inconsistent rulings.”
Not only are justices issuing more of these orders, Vladeck said, but more of them are “directly and permanently shaping state and federal policy.”
Conservative legal experts invited by the committee, however, said the court acted properly when it decided not to intervene in the Texas case.
Jennifer Mascott, an assistant professor of law at George Mason University, said because of the strange enforcement mechanism in Texas’ law, there were “serious jurisdictional questions” about whether the court even could intervene.
“The providers are saying that they are doing crisis counseling now for these people who are coming with their unwanted pregnancies, unable to terminate them and desperate about what they are going to be able to do."Democratic state Rep. Donna Howard of Austin
“It would have been extraordinary for the court to grant an order on the merit of the challenged state law,” she said.
Texas’ law, unlike any other abortion law, did not leave enforcement up to the state. Instead, it's up to private citizens all over the country to enforce. Through civil lawsuits, anyone can sue anyone who they believe provided an abortion to someone past six weeks or helped a person get the procedure in any way.
Mascott said abortion providers in the Texas case did not identify the right people to sue to block the law, which is why the court did not intervene.
But Vladeck said the justices have not gone out of their way to explain why the court wasn’t concerned about the erasure of constitutional rights in Texas, regardless of whether the case in front of them identified the appropriate defendants.
He said he’s worried this could have lasting effects on public confidence in the U.S. Supreme Court — and justices are doing little to remedy that concern.
“If the court is worried about public confidence, one of the things it can do is try to restore that confidence by at least endeavoring to explain its decisions in these contexts more fully,” Vladeck said.
In the meantime, Democratic state Rep. Donna Howard of Austin warned the Senate panel that women in Texas who see abortion providers often find out they're too late.
“The providers are saying that they are doing crisis counseling now for these people who are coming with their unwanted pregnancies, unable to terminate them and desperate about what they are going to be able to do,” she said.
Goss Graves told senators the Supreme Court’s inaction has created a serious constitutional concern in a large state with so many women of reproductive age.
“What is happening in Texas is the result of the horrifying outcome of a decades-long campaign by anti-abortion state lawmakers,” she said. “And after nearly 50 years, the Supreme Court has effectively overturned [Roe v. Wade] for 1 in 10 women of reproductive age in this country.”
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