In a shocking action, the U.S. Supreme Court issued an order just before midnight yesterday officially declining to block Texas’s draconian abortion ban.
In a 5-4 ruling, the high court rejected a request to bar enforcement of the law, contending that applicants failed to meet their burden to stay the law. The one-paragraph opinion was unsigned. Gratifyingly, Chief Justice John Roberts joined the court’s liberal bloc — Justices Sonia Sotomayor, Stephen Breyer and Elena Kagan — in dissenting.
The Texas law that went into effect Sept. 1 is the most restrictive abortion law in the country, banning abortion procedures after six weeks of gestation — which is two weeks after a missed period and before most women even know that they are pregnant. Outrageously, the law deputizes private citizens to file civil suits against abortion providers or anyone who assists someone in obtaining an abortion, offering a “bounty” reward of $10,000 and attorneys’ fees for a successful lawsuit.
Roberts, joined in his dissent by Kagan and Breyer, noted that the Texas law is “not only unusual, but unprecedented” and “appears to insulate the state from responsibility.” Given the novelty of the law and the questions still before the court, he stated he would have blocked implementation of the law “to preserve the status quo.”
Sotomayor, who has become the new voice of dissent on the high court, wrote her own passionate dissent, also joined by Breyer and Kagan, appropriately calling the order “stunning.” She termed the law “a breathtaking act of defiance — of the Constitution, of this court’s precedents, and of the rights of women seeking abortions throughout Texas.” She castigated the majority for “bury[ing] their heads in the sand.” Her footnote noted the immediate and devastating impact of the court’s failure upon pregnant people in Texas.
Kagan issued her own dissent, also joined by Sotomayor and Breyer, highlighting concerns that the shadow docket ruling departed “from the usual principles of appellate process.” She added, “the majority’s decision is emblematic of too much of this Court’s shadow-docket decision-making — which every day becomes more unreasoned, inconsistent, and impossible to defend.”
The unsigned majority opinion acknowledged that the fight is not over, contending “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.”
The case will continue in the lower courts. Later this year, the Supreme Court is expected to hear arguments in Dobbs v. Jackson Women’s Health Organization, involving the constitutionality of a Mississippi law banning abortions after the 15th week of pregnancy.
“The court’s action over the last 24 hours has stripped millions of Texans of their fundamental rights under our Constitution and has effectively overruled Roe v. Wade and Casey v. Planned Parenthood,” says FFRF Legal Director Rebecca Markert. “This decision makes clear that we cannot rely on the current Supreme Court — packed with ultraconservative Christian nationalist justices during President Trump’s term in office — from abiding by the rule of law. The only path forward is to fix our broken federal judiciary through legislation.”