High court abortion action today has ‘catastrophic impact’

The Freedom From Religion Foundation concurs with Justice Sonia Sotomayor that the impact of the Supreme Court’s failure to block the Texas abortion ban is “catastrophic.”

The court today refused the Justice Department’s request to immediately block the draconian six-week abortion ban in effect since Sept. 1. Instead, the high court scheduled oral arguments on Nov. 1, both for the DOJ’s appeal and the earlier appeal by Texas abortion clinics.

In the order, the court did not indicate it would examine the constitutionality of the abortion ban. Rather, it stated that it would weigh whether “the state can insulate from federal-court review a law that prohibits the exercise of a constitutional right by delegating to the general public the authority to enforce that prohibition through civil action.” It would also examine whether the federal government has the authority to challenge the law. 

The consequence of deferring action to block the unconstitutional law is that most abortions will remain banned in the state of Texas. Abortion providers will continue to be barred from providing abortion care after six weeks of gestation and anyone suspected of assisting a pregnant person in obtaining an abortion after six weeks of gestation can still be sued by private citizens. With no exceptions for instances of rape and incest, the unconstitutional law is the most extreme abortion restriction in the United States.

Sotomayor was the only justice to issue a written dissent. She explained:

The promise of future adjudication offers cold comfort, however, for Texas women seeking abortion care, who are entitled to relief now. These women will suffer personal harm from delaying their medical care, and as their pregnancies progress, they may even be unable to obtain abortion care altogether. Because every day the court fails to grant relief is devastating, both for individual women and for our constitutional system as a whole, I dissent from the court’s refusal to stay administratively the 5th Circuit’s order.

She later writes: “I cannot capture the totality of this harm in these pages. But as these excerpts illustrate, the state (empowered by this court’s inaction) has so thoroughly chilled the exercise of the right recognized in Roe as to nearly suspend it within its borders and strain access to it in other states. The state’s gambit has worked. The impact is catastrophic.”

Indeed, this horrific law has denied a constitutional right to countless Texas women with unwanted pregnancies and has forced desperate women to try to find funds and resources to get abortions in surrounding states. Many have driven through the night if they have been able to make out-of-state appointments. It has exacerbated existing inequalities for marginalized women, including low-income, rural, immigrant, Black Indigenous Persons of Color, and members of the LGBT community. There is no scientific rationale for this ban — only religious motivations. More than a dozen medical organizations in the United States, including the American Medical Association, have filed an amicus brief to the ultraconservative 5th U.S. Circuit Court of Appeals explaining why the abortion ban undermines medical ethics. 

“Once again, the court is using the shadow docket to deny fundamental constitutional rights,” says FFRF Legal Director Rebecca S. Markert. “This packed conservative court’s handling of these civil liberties issues should be a warning to us all.”

The way the whole process has unfolded is extremely unsettling, FFRF asserts.

“We have seen the lightning speed with which an abortion ban has been put in place, with women in the second-most populous state in the union now without constitutional protection,” notes FFRF Co-President Annie Laurie Gaylor. “The fact that the Supreme Court yet again failed to block this blatantly unconstitutional Texas law shows that abortion rights in our country are in critical danger.”

Freedom From Religion Foundation

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