A day after their perceived inaction allowed the controversial Texas abortion law to take affect, the Supreme Court handed down a ruling leaving the law in place. Chief Justice Roberts joined the liberal justices in dissent.
Nearly 24 hours after a Texas law that bans nearly all abortions in the state went into effect, the Supreme Court on Wednesday confirmed what it had previously only implied through its failure to act the night before: The court rejected a request to block enforcement of the law, which abortion providers say will bar at least 85% of abortions in the state and will likely cause many clinics to close, while a challenge to its constitutionality is litigated in the lower courts. The vote was 5-4, with Chief Justice John Roberts joining the court’s three liberal justices – Stephen Breyer, Sonia Sotomayor and Elena Kagan – in dissent.
The case, Whole Woman’s Health v. Jackson, had come to the court on an emergency basis on Monday, with a group of abortion providers asking the justices to intervene. It was the first major test on abortion rights for the Roberts court since the death of Justice Ruth Bader Ginsburg in September 2020, and Ginsburg’s replacement by the conservative Justice Amy Coney Barrett was likely decisive in the outcome.
The court’s inaction on Tuesday night that allowed the Texas law to go into effect and its brief order on Wednesday night denying any relief to the abortion providers unquestionably represented a victory for abortion foes, but the five-justice majority emphasized (and Roberts in his dissent reiterated) that the court was not endorsing the constitutionality of the law. The ruling also revealed a court that is deeply divided, not only on the merits of the case but also on the procedures that the court uses to resolve these kinds of emergency appeals.
The law, known as S.B. 8, is one of several so-called “heartbeat bills” that Republican legislatures have enacted around the country as part of an effort to overturn Roe v. Wade and Planned Parenthood v. Casey, in which the Supreme Court held that the Constitution protects the right to have an abortion before a fetus can survive outside the womb. That benchmark, known as viability, occurs around 24 weeks of pregnancy, but S.B. 8 prohibits abortions after about six weeks of pregnancy – a time measured from the first day of the woman’s last menstrual period and before many people realize that they are pregnant. To make it harder to challenge the law in court, particularly before it went into effect, the Texas law does not rely on government officials to enforce the ban. Instead, it deputizes private individuals to bring lawsuits against anyone who either providers or “aids or abets” an abortion, and it establishes an award of $10,000 for a successful lawsuit.
Texas abortion providers went to federal court in July, seeking to block it before its Sept. 1 effective date. They argued (among other things) that the law violates their patients’ constitutional right to end a pregnancy before viability. When the district court denied the defendants’ motion to dismiss the case on Aug. 25, things moved quickly. The defendants went to the U.S. Court of Appeals for the 5th Circuit, which granted their request to put the remaining district-court proceedings, including an Aug. 30 hearing on the abortion providers’ request for a preliminary injunction, on hold. The court of appeals also denied the abortion providers’ request to fast-track the defendants’ appeal, prompting the providers to seek emergency relief in the Supreme Court on Monday afternoon.
In a one-paragraph, unsigned order issued just before midnight on Wednesday, the court acknowledged that the providers had “raised serious questions regarding the constitutionality of the Texas law.” But that was not enough to stop the law from going into effect, the court explained, because of the way the law operates. Specifically, the court observed, it wasn’t clear whether the state officials – a judge and court clerk – and the anti-abortion activist whom the abortion providers had named as defendants “can or will seek to enforce the Texas law” against the providers in a way that would allow the court to get involved in the dispute at this stage.
In his dissent, which was joined by Breyer and Kagan, Roberts described the Texas scheme as “unprecedented.” By deputizing private citizens to enforce the law, Roberts stressed, the law “insulate[s] the State from responsibility.” He wrote that because of the novelty and significance of the question, he would stop the law from going into effect to preserve the status quo and allow courts to consider “whether a state can avoid responsibility for its laws in such a manner.”
Read the Supreme Courts ruling on the Texas abortion law for yourself here:
Texas abortion law
Its too late. The Roberts’ Court has, for all intents and purposes overturned Roe.
https://www.salon.com/2021/09/01/the-soft-overturn-of-roe-v-wade-exposes-how-far-right-john-roberts-has-let-the-supreme-court-go/Report
Its bizarre how, for decades Republicans have talked about their dream of overturning Roe, and countless pundits have told everyone to shush and stop being so silly and of course this was never going to happen.
There is this vast enterprise of refusing to believe Republicans are serious when they speak, of insisting that they are at heart just misunderstood liberals.Report
countless pundits have told everyone to shush and stop being so silly and of course this was never going to happen.
They have?
Because I’ve always heard that the Republicans are *THIS* close to pulling it off and that’s why you need to vote for Democrats. Oh, and that this was decided correctly by the courts and we don’t need a law.Report
The ones that are above cheap partisanship all reassured us that judges are judges, not partisans, and pointed to the way they knocked down every one of Trump’s election cases as proof. It’s like they’d forgotten how even Saint Anthony was eager to kill the VRA.Report
More accurately, some liberals like to tell us leftists that we are just not sensitive enough and if we just work harder to understand them it will all be well.
This is what underpins my often repeated thesis that Democrats are not seen as “fighters.”Report
My suspicion, borne out of personal experience, is that it is white affluent liberals who are most susceptible to the Furrowed Brow Of Concern schtick.
Minorities, I believe, have fewer illusions about the intent and good will of their fellow citizens.Report
Democrats, liberals, and progressives have been using citizen lawsuits to enforce laws for decades. Now that conservatives have finally figured out the strength of citizen lawsuits, the same liberals and progressives have decided that citizen lawsuits are bad. The left cannot have it both ways.Report
Is there a precedent for the Supreme Court preemptively blocking a law? I thought they typically acted after a law was enforced, after moving through the appeal process.Report
There are lower courts that haven’t yet heard this case. The Supreme have and could stay the law while waiting for the lower fed and state courts to rule. It is common to pause implementation of a law with serious constitutional issues while it is still working its way through court.Report
In his dissent, which was joined by Breyer and Kagan, Roberts described the Texas scheme as “unprecedented.
He’s forgotten the Fugitive Slave Act of 1850.Report