Last week, the Supreme Court declined to temporarily halt, and thus allowed to go into effect, a new Texas law that bans abortion after six weeks of pregnancy—effectively banning most abortions in the state. The law is unusual in that, instead of enacting criminal penalties as a method of enforcement, it enables others to sue anyone who violates the law for money damages. On this week’s episode, host Jeffrey Rosen is joined by constitutional law scholars Kate Shaw and Sarah Isgur to explain what exactly the Texas law says, the motivations and legal theory behind it, and why it was structured the way it was specifically in order to be hard to challenge—given that it directly violates constitutional precedents like Roe v. Wade and Planned Parenthood v. Casey, which protect the constitutional right to abortion pre-viability (around 22-24 weeks). Shaw and Isgur also consider whether the type of enforcement mechanism that makes this Texas law unique might be replicated in other states for abortion restrictions or gun control. They also unpack the Supreme Court’s brief ruling declining to intervene at this time, its reasoning, and how it compares to other recent emergency rulings like the COVID-19 cases and the eviction moratorium. Kate Shaw is a professor at Cardozo Law and a co-host of the Supreme Court podcast Strict Scrutiny. Sarah Isgur is staff writer at The Dispatch and co-host of the legal podcast Advisory Opinions.
This episode was recorded just before the Justice Department announced that it will sue the state of Texas over this law—although our guests provide some pre-emptive speculation on what such a lawsuit may look like.