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The US Supreme Court never mentioned the effect on Texas women when it cleared the way for the state last week to ban almost all abortions after six weeks, before many women know they are pregnant.

The court’s silence stands in contrast to its concern for New York City worshippers affected by capacity restrictions on churches and synagogues during the height of the pandemic. In a November order, the court said adherents would suffer if they couldn’t attend services in person.

“Catholics who watch a Mass at home cannot receive communion, and there are important religious traditions in the Orthodox Jewish faith that require personal attendance,” the court said in its unsigned opinion.

The two late-night orders underscore just how far out of favour abortion rights have fallen at a Supreme Court now under conservative control. 

Both cases arrived as part of the so-called shadow docket, the stream of emergency requests that have become a major, and increasingly controversial, part of the high court’s work. Under the court’s precedents, both sets of litigants needed to show that they were likely to win their case and that they faced “irreparable harm” without Supreme Court intervention.

Unlike in the church case, where the court protected religious rights against what it saw as government intrusion, the justices were unwilling to shield thousands of Texas women from an abortion law that even the majority said was constitutionally questionable. The 5-4 order forced clinics to start turning away patients and emboldened abortion opponents to propose similar laws in other states.

“The problem is that the court has not been consistent in applying that standard,” said Steve Vladeck, a constitutional law professor at the University of Texas and outspoken critic of the court’s use of the shadow docket. In the court’s 2020-21 term alone, the court has issued six emergency orders in religious liberty cases, “at least several — and perhaps all — of which didn’t meet the court’s own criteria for such relief”.

‘Immediately and catastrophically’

Abortion clinics and doctors said they easily met the test, including the irreparable harm requirement. They argued that the state’s ban on abortions after the detection of fetal cardiac activity, something that occurs at about the six-week mark, would outlaw at least 85% of the procedures they normally perform.

The law “would immediately and catastrophically reduce abortion access in Texas” and force many clinics to close, the providers argued.

The court never addressed that argument, instead saying the providers failed to overcome “complex and novel antecedent procedural questions”, including the issue of how the court could block a law that’s designed to be enforced only by private lawsuits.

The procedural issue before the court was “radically different from that presented in the religion cases”, said Jonathan Adler, a constitutional law professor at Case Western Reserve University School of Law. “I don’t think it’s an apples-to-apples comparison. They didn’t get to issues like irreparable harm because it’s not entirely clear what they could/should have enjoined.” Still, the five justices in the majority gave no hint they were troubled that the order would leave abortion rights in tatters in the country’s second-largest state. They left the Texas law in force even while saying the providers “have raised serious questions” about its constitutionality.

‘Constitutional orphan’

The conservative justices say it is other rights that get the short shrift. Justice Clarence Thomas has repeatedly argued that the court treats the Second Amendment as a second-tier right by not taking up more appeals from gun-rights advocates.

“The right to keep and bear arms is apparently this court’s constitutional orphan,” Thomas said in 2018. The court has since taken up a case, set for argument in November, that will determine whether people have a constitutional right to carry a concealed handgun.

Justice Samuel Alito said in a speech last year that “in certain quarters, religious liberty is fast becoming a disfavoured right.”

But the Texas order made clear that abortion is the disfavoured right for the court’s majority, according to Leah Litman, a constitutional law professor at the University of Michigan Law School. That’s a bad sign for reproductive rights, given that the court has agreed to hear a Mississippi appeal that seeks to overturn the landmark 1973 Roe v Wade ruling, which legalised abortion nationwide. 

The court has not yet scheduled an argument date for the Mississippi case, which it will consider during the nine-month term that starts in October.

When it comes to abortion rights, the court “couldn’t care less”, Litman said.

Bloomberg News. More stories like this are available on bloomberg.com


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