(Bloomberg) — A sharply divided U.S. Supreme Court refused to block a Texas law outlawing most abortions after six weeks of pregnancy, letting a measure that went into effect Wednesday remain in force as the strictest restriction in the nation.
Voting 5-4, the justices turned away calls from abortion providers to put the law on hold while the legal fight goes forward. The challengers say the measure will ban abortion for at least 85% of patients in the state and force many clinics to close.
The rejection marks a watershed moment, allowing a law at odds with Supreme Court precedents that protect abortion rights until much later in pregnancy. The order raises new questions about the durability of those precedents, including the landmark 1973 Roe v. Wade ruling, which opponents are seeking to overturn in a case the court will consider in a few months.
The majority said the challengers had “raised serious questions regarding the constitutionality of the Texas law” but hadn’t shown they could overcome a thicket of procedural obstacles stemming from the law’s unusual delegation of enforcement powers to private parties.
“In light of such issues, we cannot say the applicants have met their burden to prevail in an injunction or stay application,” the court said in its one-paragraph explanation.
Chief Justice John Roberts joined the court’s liberals in dissent. Justice Sonia Sotomayor called the order “stunning” in an opinion joined by Justices Stephen Breyer and Elena 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.
She called the law “breathtaking act of defiance — of the Constitution, of this court’s precedents, and of the rights of women seeking abortions throughout Texas.”
Rewarding Texas
Kagan, in an opinion joined by Breyer and Sotomayor, said the court “rewards Texas’s scheme to insulate its law from judicial review by deputizing private parties to carry out unconstitutional restrictions on the state’s behalf.”
Roberts was more measured, saying he would have blocked the law to “preserve the status quo ante — before the law went into effect.” Unlike the other dissenters, he didn’t say the Texas law was unconstitutional.
Justices Clarence Thomas, Samuel Alito, Neil Gorsuch, Brett Kavanaugh and Amy Coney Barrett formed the majority. All are Republican appointees, the last three selected by former President Donald Trump.
The court released the opinion just before midnight Wednesday, about 23 hours after silently letting the law go into force on its Sept. 1 effective date. Sotomayor suggested the majority was to blame for the delay in acting on the request, accusing the court of giving its explanation “belatedly.”
Representatives of Whole Woman’s Health and Planned Parenthood, two of the plaintiffs in the lawsuit, said their clinics in Texas were open Wednesday but complied with the law by providing abortion services to only a limited class of patients.
“We are devastated by today’s ruling,” Whole Woman’s Health President Amy Hagstrom Miller said after the Wednesday night order. “Our patients are scared and confused and desperately trying to figure out what they can do to get an abortion.”
The Texas law, known as Senate Bill 8, bars abortion after a fetal heartbeat can be detected and puts clinics at risk of being shut down if they are found to be in violation.
The law’s novel enforcement mechanism was at the center of the legal clash. The measure lets private parties sue a clinic or anyone who helps a woman get an abortion — and collect a minimum of $10,000 in damages per procedure — but doesn’t authorize government officials to sue alleged violators.
Whom to Sue
The enforcement provision left unclear whom challengers could sue to stop the law before it took effect. The defendants in the lawsuit include a state judge and clerk who the providers say will be responsible for handling cases filed in their courts. The complaint also names Mark Lee Dickson, an anti-abortion pastor who the clinics say has threatened to file suits against those who violate the act.
The Supreme Court majority said it was “unclear whether the named defendants in this lawsuit can or will seek to enforce the Texas law against the applicants in a manner that might permit our intervention.”
The defendants said the providers lack legal “standing” to sue at this stage because they can’t show an imminent injury stemming from the law. The government defendants also said they are protected from being sued by sovereign immunity.
The law includes several other provisions that abortion-rights advocates say are onerous. The measure lets lawsuits be filed in any of Texas’s 254 counties and bars transfer of cases elsewhere without the parties’ joint agreement. It puts defendants — as well as their lawyers — on the hook for the other side’s legal fees if they challenge the constitutionality of the law and any of their claims are dismissed. Plaintiffs who file successful suits can collect attorney’s fees, but defendants who defeat suits cannot.
In addition, the statute says a defendant who facilitates an abortion in reliance on a court ruling — such as a decision that the Texas law is unconstitutional — can still be held liable if that decision is overturned.
The measure makes no exceptions for pregnancies caused by rape or incest, though it does allow abortions in cases of medical emergencies.
A federal trial judge had been set to consider stopping the law from taking effect, but a three-judge panel of the conservative 5th U.S. Circuit Court of Appeals blocked the lower court proceedings from going forward.
The case is Whole Woman’s Health v. Jackson 21A24.
*story by Bloomberg
