As noted a couple of times earlier here, the Supreme Court sent up alarming (if you are pro-choice) but not very clear signals yesterday in refusing to overturn a Court of Appeals order allowing the implementation of Texas’s new abortion laws, which itself overturned a district court order to suspend the law until its constitutionality was reviewed.
A careful review of the above sentence shows why the signals sent by the court are stormy but hazy: the issue was whether the Texas law was so blatantly an “undue burden” on a woman’s right to choose that its unconstitutionality was to be presumed even as the courts reviewed it in detail. The four dissenters from yesterday’s action (Justices Breyer, Ginsburg, Sotomayor and Kagan) argued it was; three conservative justices assumed to be sure votes for significantly revising all existing precedents on abortion (Scalia, Thomas and Alito) argued for the state’s prerogatives. The Chief Justice, and most importantly the ultimate swing vote on the Court when it comes to reproductive rights, Justice Kennedy, voted with Scalia and company but didn’t join in their opinion.
What this means is that the law stays in place, with its baleful effect on Texas abortion providers, as its constitutionality works its way through the entire federal judicial system. That’s bad, but insofar as Roberts and Kennedy haven’t shown their hands, it’s not necessarily a disaster at least in terms of constitutional precedents. I’ll be interested to see if Court-watchers more attuned to the vibrations emanating from the Justices are more confident than I am in predicting the road ahead.