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If there was any debate as to how right-wing the Supreme Court has become, it’s over: the nation’s highest court voted 5-4 Wednesday to not take action on Texas’s ban on abortion after six weeks, which is before most people even know they’re pregnant.
The Supreme Court’s inaction means it’s officially open season on the constitutional right to an abortion established by the 1973 Roe v. Wade ruling, as well as the reproductive health of millions of Texans. And the court’s dissenting voices were furious; Justice Sonia Sotomayor described the court’s decision to punt on the ruling as “stunning.”
The Texas law, called the Texas Heartbeat Act and known colloquially by its bill number, SB 8, says that a “physician may not knowingly perform or induce an abortion on a pregnant woman if the physician detected a fetal heartbeat.” This can happen in as few as six weeks; Roe v. Wade guaranteed abortions within the first trimester as solely the right of the mother of the child.
In addition to its near total ban on abortion, the Texas law carries with it the prospect of turning ordinary Texans into bounty hunters against people who assist with the abortion in any way—from the provider to even the person who drives them to the appointment—by allowing them to sue in civil court and win up to $10,000. And those who unsuccessfully sue are shielded from liability, such as paying the legal fees of the people or groups they sued.
Texas abortion providers had sued to stop the law from taking effect, arguing that it “would immediately and catastrophically reduce abortion access in Texas, barring care for at least 85 percent of Texas abortion patients (those who are six weeks pregnant or greater) and likely forcing many abortion clinics ultimately to close.”
But the Supreme Court—given a majority by the three Supreme Court justices nominated by former President Donald Trump—denied their request in a late-night decision Wednesday.
“The applicants now before us have raised serious questions regarding the constitutionality of the Texas law at issue,” the unsigned opinion of five justices—Samuel Alito, Clarence Thomas, Amy Coney Barrett, Brett Kavanaugh, and Neil Gorsuch—said. “But their application also presents complex and novel procedural questions on which they have not carried their burden.”
The order goes to great lengths to say they’re not making a call on the law itself, and instead just leaning on a technicality to shut down the request to temporarily stop the law from taking effect. “In reaching this conclusion, we stress that we do not purport to resolve definitively any jurisdictional or substantive claim in the applicants’ lawsuit,” the justices said.
“In particular, 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.”
All four justices who voted for an injunction against the law—Chief Justice John Roberts as well as the court’s three liberals, Sotomayor, Elena Kagan, and Stephen Breyer—wrote individual dissents. Roberts called the scheme to allow ordinary people to effectively enforce the law “not only unusual, but unprecedented.”
“The desired consequence appears to be to insulate the State from responsibility for implementing and enforcing the regulatory regime,” Roberts wrote.
“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 in her dissent.
“Last night, the Court silently acquiesced in a State’s enactment of a law that flouts nearly 50 years of federal precedents,” she added. “Today, the Court belatedly explains that it declined to grant relief because of procedural complexities of the State’s own invention.”
With the Texas order comes mounting pressure on congressional Democrats to pass legislation making Roe v. Wade into federal law.
On Wednesday, President Joe Biden said the Texas law “blatantly violates the constitutional right established under Roe v. Wade and upheld as precedent for nearly half a century,” and said his administration “is deeply committed to the constitutional right established in Roe v. Wade nearly five decades ago and will protect and defend that right.” White House Press Secretary Jen Psaki said Wednesday that the administration would “continue to call for the codification of Roe” as well.
“Let’s remember that 70 percent of Americans want to see Roe versus Wade as the law of the land,” Sen. Elizabeth Warren, the Massachusetts Democrat who ran for president in 2020, told MSNBC Wednesday. “The Supreme Court is not the only one who could provide that. Congress could pass Roe versus Wade.”