What the Supreme Court abortion decision means for Texas and the court’s future

“So it’s not just that it’s a rightward shift, it’s that there’s not really a slippery slope anymore. The justices are running to the bottom of the slope.”

By Jill Ament & Cristela JonesJune 24, 2022 1:20 pm, ,

The Supreme Court overturned the landmark case of Roe v. Wade Friday morning, leaving the states to decide abortion laws. 

The Dobbs v. Jackson Women’s Health Organization decision does not outlaw or ban abortion in the United States, but it does reverse and remove the legal framework that recognized abortion as a constitutionally guaranteed right. And there’s much to discuss on this big day in the history of our country. 

Elizabeth Sepper is a professor at the University of Texas at Austin School of Law specializing in religious liberty, health law and equality; Joanna Grossman is the Ellen K. Solender Endowed Chair in Women and the Law and a professor of law at Southern Methodist University Law School in Dallas. They both join The Standard to discuss what overturning Roe means for Texans. Listen to the interview above or read the transcript below.

» The Texas Standard wants to hear from you: Share your reaction to the Supreme Court’s abortion decision

This transcript has been edited lightly for clarity:

Texas Standard: A lot of people are pointing to how this Supreme Court decision ultimately came down to the justices appointed by Donald Trump. Professor Grossman, is that how you see what has happened on this day? 

Joanna Grossman: Yes. I mean, there’s no way to explain what has happened except for a change in composition of the court and not a change in a sort of subtle, evolutionary sense. But Donald Trump’s decision to appoint justices specifically because they had been vetted by the Federalist Society and had a lot of confidence that they would vote to overturn Roe v. Wade. He said that’s why he was picking people. And that is in fact what happened. So, yes, I think it’s an abrupt change in composition that shifted the court far rightward.

Professor Sepper, do you agree with that analysis, and what does that mean for the court longer term and its legitimacy?

Elizabeth Sepper: I think this court doesn’t care. What we’re seeing is a deeply impatient court. So it’s not just that it’s a rightward shift, it’s that there’s not really a slippery slope anymore. The justices are running to the bottom of the slope. So we’ve seen that this week with the gun rights case that radically shifted and expanded gun rights counter to a long tradition in our Constitution, and then today taking away a right that people have enjoyed for almost 50 years now.

It didn’t seem like some of the key language that was much discussed after the leak of Alito’s opinion in May had changed. Did you pick up on anything?

Grossman: The leaked opinion was really pretty much almost exactly what we’re seeing here. Obviously, we’ll be doing comparisons, but I thought it was surprising that a lot of errors that have been pointed out after the leaked draft didn’t even get fixed. So I think that sort of further supports what Professor Sepper is saying, which is this court doesn’t really care that much about getting it right or being plausible or being legitimate. This court is outcome-oriented in a very as she [said], impatient way, right? That what they wanted was this bottom line. And I think they were sort of unfazed by the reaction to the leaked draft, even things that they could have fixed and come out the same way. 

This basically leaves access to abortion up to the individual states. Is that a correct characterization? 

Grossman: Yes, it leaves abortion up to the individual states. And we pretty much know what that’s going to look like, at least in the immediate aftermath, right?

So about half the states either have passed a law anticipating this or have a law on the books that will now be able to be enforced that will ban abortion in virtually all cases. Texas is one of those states. And so, you know, you’ll end up with an abortion map that looks very much like the presidential election night map, right? Which is sort of red and blue.

What are we likely to see in Texas as a result of this opinion? Are we going to see more hardships placed on people seeking abortion care?

Sepper: Yes, so people facing abortion care are going to have to travel much, much farther distances. We know that three of the four states surrounding us will ban abortion now. So Texans will have to travel to New Mexico, Colorado, Tennessee. These may be the closest states available to Texans.

We know that a number of people will manage to secure medication, abortion via mail. These will be illegal under Texas law. However, the abortion-specific laws in Texas do not allow prosecution of the pregnant person who self-manages their abortion. But self-managing abortion through mailed abortion pills is going to be legally risky. Legally risky for the pregnant person’s friends and family, but potentially legally risky for the pregnant person as well under other criminal laws that enterprising prosecutors might use.

I want to pull back in and ask whether this could complicate the medical ethics of women seeking pregnancy care in general, miscarriage care, for example?

Grossman: I mean, we’ve already had, unfortunately, a year of seeing what the world is going to be like in Texas because of SB 8 and that ban after six weeks [of pregnancy]. And there are enormous fallout effects on all kinds of women’s health care.

So miscarriage management – we’re seeing, for example, pharmacists refusing to dispense miscarriage pills because it’s one of the two pills used in medication abortion. We’re seeing hospitals change their policies about when they’re willing to do certain things for ectopic pregnancy or for miscarriage management … I think that’s only going to grow.

I think what people are going to find is that fertility treatments are going to be affected by miscarriage management, ectopic pregnancy, and then even the abortions that will remain legal in Texas, which will be the ones necessary to save the life or serious health risks of the pregnant person. There’s not going to be anybody to perform those abortions safely. Because all of the abortion clinics will have to shut down. So I think people are going to be surprised by the fallout and how devastating it’s going to be for people who weren’t even seeking an abortion. 

Do you see other implications beyond abortion as a result of this decision, the precedents that are being set and being uprooted here?

Sepper: I’m going to say yes, absolutely. I think just in terms of medical care, right? There are going to be people who are forced into pregnancy and will be forced to carry the pregnancy to term. We are a state that has a deficit of providers who are able to deliver babies. We don’t have hospitals in rural areas that are prepared to meet a surge of of births that will result from a total abortion ban that we’re looking at.

And anyone who becomes pregnant, right? The security of Roe, even with a wanted pregnancy, was that the pregnant person’s life mattered and that it was up to her to make a decision. Ultimately, if faced with the question, “who do we save, you or the fetus?” And that was her choice. That won’t be the choice anymore for people carrying wanted pregnancies. They won’t get to say, “my life matters.”

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