SCOTUS formally rejects request to block Texas abortion ban
Image from Shutterstock.
The U.S. Supreme Court on Wednesday officially denied an emergency request from abortion providers to block a controversial Texas law that bans abortions after six weeks, before many women know that they are pregnant.
Chief Justice John G. Roberts Jr., along with liberal Justices Elena Kagan, Stephen G. Breyer and Sonia Sotomayor, dissented.
In the 5-4 unsigned decision, the high court’s majority said to prevail in an application for a stay or injunction, the providers must meet several factors, including making a “strong showing” that they are “likely to succeed on the merits,” and that they will be “irreparably injured absent a stay.”
“The applicants now before us have raised serious questions regarding the constitutionality of the Texas law at issue,” the majority wrote. “But their application also presents complex and novel antecedent procedural questions on which they have not carried their burden.”
The Texas law, known as SB8, went into effect Wednesday, before the Supreme Court issued a ruling in this case. It prevents abortions after a doctor detects a fetal heartbeat and contains an exception only for medical emergencies but not for rape or incest.
As part of the law, private citizens inside or outside Texas can sue abortion providers and anyone else who helps a woman obtain an abortion and potentially be awarded at least $10,000 per illegal abortion if they are successful.
The Center for Reproductive Rights, Planned Parenthood, the Lawyering Project, the American Civil Liberties Union and other groups have argued that it would bar care for at least 85% of abortion patients in Texas and force many abortion clinics to close. They asked the Supreme Court on Monday to intervene after the 5th U.S. Circuit Court of Appeals at New Orleans denied their emergency motions to block the law while legal challenges moved through the court.
The abortion providers had filed a federal lawsuit in July against people who could be involved in enforcing the law, such as every state court trial judge and county clerk and leaders of the Texas Medical Board and the Texas Board of Nursing.
The court’s majority said in its decision it was unclear whether the defendants in the lawsuit could or would enforce SB8 in a way that would call for its intervention.
“The state has represented that neither it nor its executive employees possess the authority to enforce the Texas law either directly or indirectly,” the majority wrote. “Nor is it clear whether, under existing precedent, this court can issue an injunction against state judges asked to decide a lawsuit under Texas’ law.”
The court also emphasized that it had not resolved jurisdictional or substantive claims in the lawsuit brought by the abortion providers.
“In particular, this order is not based on any conclusion about the constitutionality of Texas’ law and in no way limits other procedurally proper challenges to the Texas law, including in Texas state courts,” the majority wrote.
In one of several dissents, Sotomayor called the decision “stunning.” She was joined by Breyer and Kagan.
“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,” Sotomayor wrote. “Last night, the court silently acquiesced in a state’s enactment of a law that flouts nearly 50 years of federal precedents. Today, the court belatedly explains that it declined to grant relief because of procedural complexities of the State’s own invention.”
Roberts said in his dissent the court needed more time to consider the law, which he called “not only unusual but unprecedented.” He was also joined by Breyer and Kagan.
“The legislature has imposed a prohibition on abortions after roughly six weeks and then essentially delegated enforcement of that prohibition to the populace at large,” Roberts wrote. “The desired consequence appears to be to insulate the State from responsibility for implementing and enforcing the regulatory regime.
“The state defendants argue that they cannot be restrained from enforcing their rules because they do not enforce them in the first place. I would grant preliminary relief to preserve the status quo ante—before the law went into effect—so that the courts may consider whether a state can avoid responsibility for its laws in such a manner.”
The Supreme Court’s decision in this case could foreshadow its decision in another case involving the constitutionality of Mississippi’s ban on most abortions after 15 weeks of pregnancy. In May, the justices agreed to consider one question in Dobbs v. Jackson Women’s Health Organization: whether all previability prohibitions on elective abortions are unconstitutional.
It is a direct challenge to Roe v. Wade, the 1973 decision that prohibits states from banning abortions before a fetus is viable.
Steve Vladeck, a Supreme Court analyst at CNN and a professor at the University of Texas School of Law, said after the ruling “Chief Justice Roberts calls out the Texas law for what it is—a transparent attempt not just to undermine Roe but to make it hard for such a restriction to be blocked.”
Vladeck added that even though it may signal that Roberts isn’t ready the overturn Roe, “the million-dollar question that the 5-4 vote raises is whether, when the time comes, any of the other conservatives will join him.”
Justices Neil M. Gorsuch, Brett M. Kavanaugh and Amy Coney Barrett, who were all appointed by former President Donald Trump, joined the majority in allowing the Texas law to remain in effect.
President Joe Biden addressed the Supreme Court’s ruling Thursday, saying permitting a law that enables private citizens to sue not only health care providers but family members who support a woman seeking an abortion and friends who drive her to the clinic “unleashes unconstitutional chaos and empowers self-anointed enforcers to have devastating impacts.”
“For the majority to do this without a hearing, without the benefit of an opinion from a court below, and without due consideration of the issues, insults the rule of law and the rights of all Americans to seek redress from our courts,” Biden continued in his statement.
Biden said he would direct the Gender Policy Council and the Office of the White House Counsel to initiate a “whole-of-government effort” in response to the court’s ruling. Specifically, he said they will look to the Department of Health and Human Services and the Department of Justice to determine how the federal government can ensure that women in Texas continue to have access to safe and legal abortions.
Updated Sept. 2 at 11:40 a.m. to include remarks from President Joe Biden.