What the Media Got Wrong About the Supreme Court’s Texas Abortion Decision

The Supreme Court decided this week to keep, for now, the Texas law that prohibits abortion – except when the mother’s life is in danger – when a fetus’s heartbeat is detected, usually at the sixth week of pregnancy. It is unenforceable by public officials, but allows people to sue those aiding and abetting an abortion and get up to $10,000 in civil suits.

“The court’s move means that the law — which is one of the strictest in the nation and bans abortion before many people know they are pregnant — will remain on the books,” reported CNN.

“The Supreme Court, by 5 to 4, declined to block Texas’s law banning abortions after six weeks – a strong but not final indication that the court will soon overturn Roe v. Wade,” said Thursday morning’s Politico Playbook.

These examples show how the media improperly covers the Supreme Court.

University of Chicago Law professor William Baude told The New York Times on Wednesday, “The case has been overhyped. The idea that unless the court acted last night it

was de facto overturning Roe v. Wade is not true.”

Constitutional lawyers who spoke with Mediaite criticized how the press reports on the highest court in the land.

“This is a really unusual law, and reached the Supreme Court in a really complicated procedural posture. The fact that its subject is the biggest lightning rod in American politics doesn’t help,” said the Cato Institute’s Ilya Shapiro. “So yeah, the media got it wrong, as did activists on both sides. Frankly, if the challengers had gotten their acts together to sue over it sooner, and to set up a friendly test case under SB8, the law would’ve already been enjoined by Texas state courts.”

“Many in the media seem incapable of understanding even the basic facts or procedural posture of cases,” said attorney Howard Slugh. “They focus on the ‘bottom line’ outcome of a case and then say wildly inaccurate things regarding how the court got there and ignore all nuance, even though those factors often dramatically change the import of the ‘bottom line decision.’”

Slugh went on to say “the Supreme Court said it had serious concerns that the Texas abortion law was unconstitutional, but noted that the plaintiffs had sued defendants who were not involved in the enforcement of the law–and therefore the court had no reason to decide the constitutionality of the law. The media responded as if the court had ruled in favor of the Texas law, and in doing so drastically

misinformed voters about what actually occurred.”

Texas-based constitutional law professor Josh Blackman echoed Slugh and provided context that he said the media has been missing.

Blackman explained that, given that the Texas law does not enable state officials to enforce it, Planned Parenthood “tried to get around that” and sue a state district judge, Reeve Jackson, and make him party to their case, though “initially Planned Parent[hood] wanted to sue every judge in the state” in creating a class action lawsuit, “but they didn’t get that far.”

“So as the case arrived at the Supreme Court, there was only one judge involved in the case, Judge Jackson. He was the only party there,” he continued. “Even if the Supreme Court gave Planned Parent[hood] everything they wanted, they wouldn’t have fixed their problem because every other judge in Texas still could have heard such a case.”

Therefore, said Blackman, “all of the criticism of this dispute is unfair, given the case Planned Parent[hood] brought up. There was no way for them to get the relief they wanted because the judge hadn’t certified the class.”

The Supreme Court does not get covered objectively because, according to Blackman, “people don’t understand the nuances of most cases.”

“They simply see abortion,” but “don’t realize that there’s some very specific procedural issues that limit the ability of the court to rule,” he said.

Additionally, “the court can’t issue injunctions against a law.

Courts only issue injunctions against parties. And the only party was Judge Jackson,” said Blackman. Therefore, the Supreme Court could not have issued an injunction against the Texas abortion law.

Blackman remarked that “virtually every reporter” who has written about the Supreme Court decision “has simply missed this huge issue because it’s not convenient. It doesn’t fit a narrative.”

Regarding the Supreme Court not intervening this week, Slugh noted that the nation’s highest court “had serious concerns that the Texas abortion law was unconstitutional, but noted that the plaintiffs had sued defendants who were not involved in the enforcement of the law — and therefore the court had no reason to decide the constitutionality of the law.”

“The media responded as if the court had ruled in favor of the Texas law, and in doing so drastically misinformed voters about what actually occurred,” he continued.

It’s not only what the Supreme Court did in regards to the Texas law that the media has misled the public about. The media has misinformed the American people about the high court in general.

For example, “most cases are not ideological … something that perhaps the media doesn’t see because they’re low-profile,” said Blackman. Such cases include matters of tax and business law – which usually are not of interest to the people or general public. These cases are usually decided unanimously by the Supreme Court. “The 5-4 cases attract a very high percentage of media attention because

they are more salient issues: abortion, guns, affirmative action, voting rights, election law,” he said. “These are the issues that garner headlines.”

Would newsrooms hiring more lawyers to cover the court ensure accuracy in covering the Supreme Court? Not really, said the constitutional experts.

“I don’t think the botched coverage can be fixed by hiring more newsroom lawyers; some of the most inflammatory things written and spoken about this episode have been by people with JDs who should know better,” said Shapiro. “Instead, this foofaraw is largely a function of the Supreme Court’s short-circuiting the political debate over abortion nearly a half-century ago; as even the late Justice Ruth Bader Ginsburg acknowledged, Roe v. Wade warped our legal and political discourse.”

Slugh said that newsrooms “should just hire more minimally competent people.”

“It doesn’t take a lawyer to read the words ‘this order is not based on any conclusion about the constitutionality of Texas’s law, and in no way limits other procedurally proper challenges to the Texas law, including in Texas state courts’ and understand that the Court didn’t answer the ultimate question,” he continued, quoting the unsigned order.

Blackman had this advice for newsrooms: “I think what would be helpful is if reporters call people on both sides of the spectrum. I’ve talked to a dozen reporters yesterday, some of them quoted me, some of them didn’t. At least I try to educate as best as I can.

If you look at the op-eds published today, I think it’s 99 to one, right? Almost all of them are on the left, and maybe one or two on the right. Media bias is all hobbyhorsed, but the minimum, talk to law professors on both sides of the issue and they might shine a light on what’s missing.”

Words of wisdom. If only the media would exercise this judgement when covering the highest court in the land.