Texas abortion ruling: The conservative justices’ reasoning is legal mansplaining.

Texas abortion ruling: The conservative justices’ reasoning is legal mansplaining.

by Dahlia Lithwick

If you woke up this morning to the news that in the middle of the night, in an unsigned order, five conservative justices of the U.S. Supreme Court ended 50 years of abortion rights in Texas without full briefing or oral argument, you might well be wondering why they didn’t just wait and do it on the regular docket, in a Mississippi case they will hear this fall. That case, Dobbs, would have achieved most of the same outcomes—Mississippi’s is a 15-week ban as compared with Texas’ six-week—but both were pre-viability and both upend the long-standing rule that pre-viability bans are unconstitutional. After sitting on the Mississippi case for months, the high court agreed to hear Dobbs last spring, despite the fact that there was no circuit split and no need to address the abortion issue at all. The difference was merely that Amy Coney Barrett had taken over from Ruth Bader Ginsburg. There was no meaningful way to understand the decision to take up Dobbs beyond the fact that with Brett Kavanaugh and Barrett now seated, the court finally had the votes to end Roe.

So if the court planned to do so anyhow, and as early as 2022, in a properly briefed and argued case with an actual trial record, what possible logic led five justices to do the sneaky, garbage version in a page and a half at midnight? They could have used Dobbs and some cynical trickery with the undue burden test to achieve the same result in an open, orderly fashion, but instead they opted to do it over their summer recess, on the shadow docket, without proper explanation or transparency.

The cynic in me stands by the claim that they never intended to do in the open what could be done through sloppy subterfuge; that blaming irascible Texas wackiness, throwing up their hands and sighing that a law that was designed to evade judicial scrutiny somehow should evade scrutiny, and then slinking off to bed in the hopes that nobody would care much was always the most appealing strategy. But a careful look at the shoddy, contemptuous jurisdictional reasoning of the five justices in the majority suggests something even darker. It’s not just that the majority of the Supreme Court functionally ended abortion rights for most women in Texas last night merely because they could. And it’s not just that they did so because—as is so often the case with impressionistic, frayed shadow docket reasoning—their personal feelings about the constitutional right to abortion are quite robust. It’s almost impossible to not go one further and declare that the court opted to end virtually all abortion rights in Texas, in the full knowledge that they were blessing an unconstitutional and brutal piece of lawless vigilantism, because it’s only about women.

Forgive the hyperbole, but how else could the five justices in the majority—in the fullness of knowledge that by Wednesday morning Texas women would be isolated, terrified, and medically and psychologically endangered as a result of their own inaction—hide behind odious mansplaining about the “complex and novel antecedent procedural questions” that force them to stand by as clinics are shuttered and frantic women beg for services? In 2016, the Supreme Court conceded that a woman is 14 times more likely to die by carrying a pregnancy to term than by obtaining an abortion. The Texas law has no exception for rape or incest. And at six weeks of pregnancy—two weeks past a last missed period—vast numbers of women are unaware that they are pregnant.

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