Did Anybody Wave Goodbye To Roe v. Wade As It Vanished At Midnight?

This isn’t getting the press that it should, because the Supreme Court snuck this in through the back door. The shadow docket is a tool by which the demise of Roe v. Wade came in at midnight Wednesday, and under the radar. The shadow docket is defined as a place “where the justices hand down largely unsigned short opinions without going through standard hearings, deliberations, and transparency.” It was recently used to deal with the eviction ban and the “remain in Mexico” policy. Now Roe v. Wade has been scuttled, with hardly a ripple in the water and we return to medieval times. Salon:

Earlier this summer, Texas passed a law banning abortion at 6 weeks. Six weeks may sound like a luxurious amount of time to make a decision, but in fact, it amounts to a near-ban on all abortion. That’s because in reality, “six weeks” is only two weeks after the missed period, and that’s only in women who have highly regular periods. Critically, it is also before many doctors will even do the procedure, for safety reasons. So it’s estimated that 85-90% of abortions in Texas are performed after the 6-week mark.

To make it worse, the law is written in such a way as to make wife beaters, Aunt Lydias, and embittered incels the primary enforcers of the ban, establishing what amounts to a public bounty hunter system. As legal analyst Imani Gandy explained at Rewire News Group, the law “allows anyone—literally anyone, including strangers!—to file a lawsuit against a person they suspect is going to either provide an abortion or help a person obtain an abortion.” This means that not only can the abusive ex-boyfriend sue the doctor who helped his victim escape his clutches, but he can now also go after the friend who put her up and paid for her abortion.

As The 19th reports, Planned Parenthood and other clinics across the state have already mass-canceled abortion appointments.

This Texas law clearly violates Roe v. Wade, the landmark Supreme Court decision that bars states from banning pre-viability abortion, a category which very much includes pregnancies two weeks after a missed period. And yet, somehow the Fifth Circuit Court, which is notoriously authoritarian, found a way to uphold the law. The law went into effect at the stroke of midnight on September 1, as the Supreme Court passively allowed that lower court decision to stand. The move, or lack thereof, is unprofessional and cowardly, but it did allow the far-right court to have it both ways by banning abortion in Republican-controlled states without drawing “Roe overturned” headlines that would anger the large majority of Americans who want to keep Roe in place.

Unfortunately, such a shadowy maneuver is hardly a unique move for this court. These kinds of passive, backdoor decisions are increasingly how the Supreme Court is now doing business. Despite the self-flattery from the legal world about the apolitical nature of the courts, the reality is today’s Supreme Court is both very political and very right-wing.

This is media manipulation and it’s working just fine. The court is pursuing its agenda successfully and it’s avoiding all the negative headlines. The people are lulled into a feeling that the Supreme Court is reasonable. Ha.

In Gallup's last poll, 51% of Democratic voters said they approved of the Supreme Court. For most of the past decade, the Roberts court enjoyed more support from Democrats than Republicans.

There's an epidemic of elite lawyer brain in blue America. https://t.co/jFRX6XfYzD pic.twitter.com/KsnudEcND1

— Eric Levitz (@EricLevitz) September 1, 2021

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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.

— Jessica Mason Pieklo (@Hegemommy) September 1, 2021

That’s when everything is transparent and above board, i.e. when a case is on the docket. Nothing is on the docket here, this is the shadow docket and it’s the means by which this court does things nowadays. They don’t care about the gravity of what they do, they’re concerned about looking bad.

From a journalist’s perspective, I can say that this method, while sordid, is effective for media manipulation. Outlets cannot publish straightforward headlines that say “Roe overturned” or “Supreme Court upholds Texas abortion ban,” because it hasn’t actually happened, one way or another. It’s possible that a decision is issued later today or this week, or never. There’s no way to know and so no way to write clear, compelling headlines, much less stories that state clearly, one way or another, if Roe is overturned. It’s Schrödinger’s abortion ban.

It’s chip away time, folks. Just like with all the voter suppression laws, just chip, chip chip away at the democracy block. Keep doing it in enough areas and you’ll weaken it and it will eventually collapse.

It’s a truism in Beltway media that Roberts is an “institutionalist” who values preserving the Supreme Court’s integrity over his far-right views. This is, as many pieces of received wisdom in D.C., utter nonsense. To be clear, Roberts values his reputation as an institutionalist. That’s why he has increasingly embraced strategies based on subterfuge and obfuscation, so he can preserve that reputation while actually doing what he was appointed by George W. Bush to do, which is impose a far-right ideology on a public that rejects it. Roberts is the one who is shepherding this abuse of the shadow docket. Roberts is the one who is letting Texas ban abortion, in direct violation of Roe, by simply washing his hands of the issue. He’s a radical wolf in institutionalist sheep clothing. The only hope is that this abortion ban is finally what attracts enough national attention to these abuses, and blows up an authoritarian strategy that only works in the shadows.

If this doesn’t wake people up, we are more asleep than we know. This is when the right-wing does its best work, is under cover of darkness. We were all lulled into a liberal stupor for eight years under Obama and we actually thought that Hillary Clinton could become the first woman president. We were not paying attention to the forces in this nation which rose to elect Donald Trump. We better wake up right now, because the signs are all around us that those same forces are amassing and doing great damage.