The U.S. Supreme Court’s failure to act immediately to enjoin Texas’s Senate Bill 8—a near-total ban on abortion before many people would even know they are pregnant—is “stunning,” as Justice Sonia Sotomayor said in her dissent to the court’s order in Whole Woman’s Health v. Jackson, 594 U. S. __ (2021), on Sept. 1. She wrote: “Presented with an application to enjoin a flagrantly unconstitutional law engineered to prohibit women from exercising their constitutional rights and evade judicial scrutiny, a majority of justices have opted to bury their heads in the sand.”

This failure does not bode well for the future of our liberty right to abortion under Roe v. Wade, 410 U.S. 113 (1973), and Planned Parenthood v. Casey, 505 U.S. 833 (1992). Later this term, in Jackson Women’s Health Organization v. Dobbs, 945 F.3d 265 (5th Cir. 2019), cert. granted in part, No. 19-1392, 2021 WL 1951792 (U.S. May 17, 2021), the court will decide whether Mississippi’s law banning abortions after 15 weeks—well before viability—is still unconstitutional, or whether Roe and Casey are overruled, explicitly or sub silentio.

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