The Texas law effectively banning the vast majority of abortions after just six weeks was allowed to go into effect on Wednesday morning because the Supreme Court did not act on an emergency appeal, but the court finally acted on that appeal the following night.
In a 5 to 4 ruling, the Supreme Court officially declined to temporarily block the law while legal challenges are underway and the vote could be a preview of how the highest court could eventually rule on the matter.
Chief Justice John Roberts joined the court's liberals in the ruling, but he is outnumbered at this point even if he joins forces with liberals.
Chief Justice John Roberts and the court's three liberal justices, Stephen Breyer, Sonia Sotomayor and Elena Kagan, dissented in the late Wednesday move.
The narrowly decided opinion, issued in a single paragraph, dealt a major blow to abortion access in Texas. It also underscored the significance of the court's ideological shift to right under former President Donald Trump. All three of his appointees – Justices Brett Kavanaugh, Neil Gorsuch and Amy Coney Barrett – voted with the majority.
In a furious dissent, Sotomayor called it "stunning" that the five justices in the majority "have opted to bury their heads in the sand" rather than enjoin the "flagrantly unconstitutional" Texas law.
Refusing to temporarily block a law does not necessarily mean the court will ultimately vote to overturn Roe v Wade in the near future, but if they do this is what the final vote will probably look like with Trump's justices tipping the balance against decades of settled law.
In a world where John Roberts is the relatively moderate judge sitting in the middle of two sides, our expectations should be adjusted accordingly. I personally expect the court will effectively overturn Roe by enabling states to ban abortion, but if they don't I believe it will come down to Justice Neil Gorsuch deciding that's a government regulation he can't support. But that's obviously not much of a hope.
If the court strikes down Roe, we'll end up with a patchwork system of legalized abortion in blue states and total bans in red states. That will increase the stakes in all future elections at the state level because that's where access to abortion will be decided. And in many ways, access to abortion already is decided at the state level, but Republican administrations with the ability to completely ban abortion absolutely will do it. It will become a litmus test for getting getting nominated for office as a Republican in the first place. No GOP leader will be allowed to say they oppose a ban if the court says they can do it.
The court recently agreed to review another ban on abortion during their next session and a decision on that case will be released sometime next spring. That's when we'll know if Roe will barely survive or not.