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.
This episode was produced by Jackie McDermott and engineered by Kevin Kilbourne. Research was provided by Sam Desai, Olivia Gross, and Lana Ulrich.
Kate Shaw is a Professor of Law and the Co-Director of the Floersheimer Center for Constitutional Democracy at Cardozo Law. She recently edited the book "Reproductive Rights and Justice Stories" and is a co-host of the Supreme Court podcast Strict Scrutiny as well as a contributor to ABC News. She previously served in the White House Counsel’s Office under President Obama.
Sarah Isgur is a staff writer for The Dispatch and host of the legal podcast Advisory Opinions. She’s also a political contributor to ABC News.
Jeffrey Rosen is the president and CEO of the National Constitution Center, a nonpartisan nonprofit organization devoted to educating the public about the U.S. Constitution. Rosen is also professor of law at The George Washington University Law School and a contributing editor of The Atlantic.
- Jonathan Mitchell, "The Writ-of-Erasure Fallacy"
- Ex Parte Young (1908)
- Wright v. Dunn (2009)
- Roe v. Wade (1973)
- Planned Parenthood of Southeastern PA v. Casey (1992)
- We the People episode on the New York COVID case, "Religion, the Constituiton, and COVID-19 Restrictions"
- We the People episode, "The Legality of the 'Eviction Moratorium'"
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