A Conversation on S.B. 8, the Shadow Docket, and Reproductive Justice

supreme court

On Sept. 16, the Solomon Center for Health Law and Policy and the Yale Law School chapter of the American Constitution Society co-hosted a virtual panel on Texas’s abortion ban and the type of Supreme Court ruling that allowed it to go into effect.

The Texas law (Senate Bill 8 or SB 8) prohibits providing abortion care after there is evidence of embryonic cardiac activity, which is why similar attempts to ban abortion are often called “heartbeat” bills. Cardiac activity is usually detectable around the sixth week of pregnancy, before many people know that they are pregnant.

The Supreme Court ruling that declined to prevent the Texas ban from going into effect was a shadow docket decision, a term that refers to those with significantly shorter deliberations than regular procedure. The Sept. 16 panel addressed Texas’s highly restrictive law, as well as the implications of shadow docket decisions becoming increasingly common.

The panel featured Khiara M. Bridges, Professor of law at UC Berkeley School of Law and the Faculty Director of Berkeley Law’s Center on Reproductive Rights and Justice, and Stephen Vladeck ‘04, Charles Alan Wright Chair in Federal Courts at the University of Texas School of Law.

Vladeck started the event by explaining the Supreme Court’s ruling on the Texas law. He then delved into the history and significance of the shadow docket. The Supreme Court has handed down thousands of these decisions, which can have summaries as short as a few sentences and often happen late at night.

The panelists also discussed the implications of the Supreme Court’s ruling on the Texas ban for abortion jurisprudence. Bridges contextualized SB 8 and the Supreme Court’s ruling within a reproductive justice framework, highlighting the ways in which abortion restrictions disproportionately burden the most marginalized populations.

During audience questions and answers, the panelists addressed SB 8’s unusual enforcement mechanism and the strength of Texas’s arguments in the litigation. The panelists also spoke to the U.S. Department of Justice’s recently filed suit challenging SB 8 and spoke to its likelihood of success.

The Solomon Center for Health Law and Policy at Yale Law School is the first of its kind to focus on the intersection of law and the governance, practice, and business of health care. The Center brings together leading experts and practitioners from the public and private sectors to address cutting-edge questions of health law and policy, and to train the next generation of top health lawyers, industry leaders, policymakers, and academics.