Many of us have heard about the Texas abortion law (Senate Bill 8) that went into effect on September 1st, banning abortions once cardiac activity can be detected in the embryo, usually around six weeks of pregnancy (before most women even know they’re pregnant). The law, which does not make exceptions for rape or incest victims, makes Texas the most restrictive state in the nation in abortion services, and is the biggest curb to abortion rights since Roe v. Wade in 1973. While the Texas ban in itself is shocking, disappointing and disheartening, it is not a new stream of thought. Thus, we must look not only at who created it and why, but why the Supreme Court allowed it to pass in the first place. While at least twelve other states, including Georgia, Mississippi, Kentucky, and Ohio, have attempted to place “heartbeat bans” at six weeks like this one, they have all been blocked from going into effect. So why wasn’t this ban blocked? The Texas ban didn’t go through the normal procedure within the supreme court; it was issued through the controversial process known as the “Shadow Docket.”

In a normal Supreme Court case, the process usually goes like this: first, participants petition the court to hear their cases, and the case goes through a full review and appeal in the lower courts. Next, lawyers of both parties submit oral arguments and appear before the justices; this gives the media the opportunity to report on the case, allows the judges to ask hypothetical questions, and identifies issues that were not properly briefed originally by the parties. Then, the judges meet in a conference to discuss the case and draft their lengthy arguments, and they come to a majority conclusion. 

In contrast, emergent cases, like those delaying the death penalty, undergo a process known as the “Shadow Docket.” This process, which was named by UChicago Law School professor William Baude, lacks the transparency, length, and public deliberation of a regular Supreme Court case. Rather than the traditional process of oral arguments described above, cases are decided from an application for emergency relief from a lower court’s order under the premise that the case meets certain emergent criteria, including that the applicants would suffer “irreparable harm” if not granted. The lower court hasn’t made a final decision on the merits of the case by the time it is given to the Supreme Court. These cases’ decisions are often handed down late at night with short summary decisions rather than the usual lengthy ones. They also don’t include much information about the reasoning behind justices’ decisions or why the majority came to a certain decision.

This is not to say the shadow docket in itself is an inherently nefarious process. It has existed since the beginning of the Supreme Court, and was typically reserved for affirming or denying uncontroversial cases from lower courts. However, in the past few years, the amount of cases being filed under the shadow docket has grown considerably, as well as the types of cases. According to the American Bar Association, between 2001 and 2017, only eight applications were filed for the Shadow Docket, but, during the Trump Administration, forty-one applications were filed in the four years over politically-charged disputes like the border wall and immigration status, COVID safety restrictions, and federal executions. Steven Wermiel, a law professor at American University, said, “The court is making extensive new law in many different areas and many different kinds of cases, by the impact of its decisions, without necessarily full explanation, full consideration and full disclosure of what they’re thinking or what their reasoning is.” Shadow docket cases are no longer just affirming and denying lower court decisions now, but have accelerated to controversial, impactful decisions, most recently seen in the Texas abortion ban.

The Texas abortion ban impacts thousands of women who will now be denied healthcare, not to mention the targeting of vulnerable groups like teens and low-income women who may not have the access to knowledge or resources regarding pregnancy and abortions. The Texas case has received national attention, polarizing the country and personally impacting millions of women. Whether you lie on one side of the debate or the other, there is no denying that this is a case with far-reaching impact that deserves the attention of the press and public opinion, and transparency from the highest court in the nation. Discussions of cases as serious and extensive as women’s right to health care should not be made in technicality processes and create “gotcha moments” between legislators and opposing citizens, but be put under the fair, transparent process that they deserve.