The Supreme Court’s inaction on Texas’ new abortion ban effectively ended abortion in the state ― at least for now ― and inspired blistering dissents from liberal justices, who called the decision “stunning.”
The court’s conservative majority led a 5-4 vote Wednesday night to deny an emergency appeal to abortion providers in Texas that are fighting a law passed by the state’s Republican-controlled legislature and signed by its GOP governor.
“Presented with an application to enjoin a flagrantly unconstitutional law engineered to prohibit women from exercising their constitutional rights and evade judicial scrutiny, a majority of Justices have opted to bury their heads in the sand,” wrote Justice Sonia Sotomayor, joined by Justices Stephen Breyer and Elena Kagan.
Calling the Texas law “patently” and “obviously” unconstitutional, Kagan went further, skewering the Supreme Court’s “shadow-docket” decisions ― a term that refers to decisions the court makes by simple orders based on relatively limited information, instead of after hearing full briefings and oral arguments.
The Supreme Court “has reviewed only the most cursory party submissions, and then only hastily. And it barely bothers to explain its conclusion,” Kagan wrote in a dissent joined by Breyer and Sotomayor. “The majority’s decision is emblematic of too much of this Court’s shadowdocket decisionmaking — which every day becomes more un-reasoned, inconsistent, and impossible to defend.”
The Texas law, which went into effect Wednesday morning, prohibits abortion after six weeks, with no exceptions for rape or incest. Abortion rights advocates say it amounts to a near-total ban, because most women are not able to confirm their pregnancy before the six-week mark ― long before any pregnancy is considered viable.
The law also wrenches enforcement duties away from government officials and hands them to ordinary Texans. Usually, abortion restrictions are enforced by officials like a state’s attorney general, who then become the target of legal challenges. Under the Texas law, however, any private citizen is to be rewarded with a bounty of at least $10,000 for winning a lawsuit against someone who helps a person get an abortion after six weeks.
Chief Justice John Roberts joined in the dissenting opinions to say the Texas law should at least be put on hold while the court took the time to evaluate the claims on both sides, citing the high stakes involved for individual women.
A one-paragraph summary of the conservative justices’ reasoning centered around the novel structure of the Texas legislation, agreeing with the defendants’ argument that such a structure tosses a wrench into preexisting case law.
Breyer, joined by Sotomayor and Kagan, noted the unusual structure of the law. “But I do not see why that fact should make a critical legal difference,” Breyer wrote. “That delegation still threatens to invade a constitutional right, and the coming into effect of that delegation still threatens imminent harm.”
Sotomayor argued that Texas legislators were “well aware” of “binding precedent” that prohibits laws like the one it passed, restricting a person’s ability to obtain an abortion of a nonviable fetus.
“To circumvent it, the Legislature took the extraordinary step of enlisting private citizens to do what the State could not,” she wrote, adding: “in short, the State’s gambit worked.”
The law “is a breathtaking act of defiance ― of the Constitution, of this Court’s precedents, and of the rights of women seeking abortions throughout Texas,” Sotomayor said.
“This is untenable,” she went on. “It cannot be the case that a State can evade federal judicial scrutiny by outsourcing the enforcement of unconstitutional laws to its citizenry.”
Sotomayor reserved her final paragraph to reprimand the court itself, telling her colleagues the court they embody “should not be so content to ignore its constitutional obligations to protect not only the rights of women, but also the sanctity of its precedents and of the rule of law.”