Well, it happened. The Supreme Court effectively overturned Roe v. Wade for folks in Texas under cover of darkness. That’s right—the biggest abortion rights news in 50 years happened in the shadows.
Instead of issuing a ruling blocking the Texas six-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.
You might be wondering: How can the justices doing nothing be the same thing as the justices saying something? I’ll explain.
Texas SB 8 bans abortion at six 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.
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.
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. 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.”
“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.
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.
The Supreme Court has done all sorts of terrible things via the shadow docket—like letting the Biden administration’s eviction moratorium lapse. And now they’ve gutted abortion rights law.
If the Court was interested in upholding abortion rights precedent, it would have issued an order that basically says, “Sorry Texas, Roe says you can’t ban abortion at six weeks. Nice try.” The Court didn’t issue that order.
And by not issuing that order, the Court signaled that the 6-3 conservative majority has no interest in upholding Roe as precedent. And it did so on the shadow docket.
You might remember that there actually is a formal challenge to Roe v. Wade “on the docket” for the Court this term—Dobbs v. Jackson Women’s Health Organization. Well, guess what? The last 24 hours just told us everything about how the Court plans to rule in Dobbs.
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.
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