Divided U.S. Supreme Court Declines to Act Against Texas Abortion Restriction

The U.S. Supreme Court has denied an emergency appeal from Texas abortion providers, leaving in place a Texas law that took effect Wednesday banning abortions after about six weeks. Texas law previously allowed for abortions as late as 20 weeks.

The ruling came late Wednesday night on the court’s so-called ‘shadow docket,’ which consists of cases decided outside of the court’s regular docket without oral argument. “The application for injunctive relief… is denied,” the order says.

It’s being described by some commentators as a major blow to Roe v. Wade, the 1973 case that established a right to abortion-though the court itself said that the decision was “not based on any conclusion about the constitutionality of Texas’s law,” and would not prevent “other procedurally proper challenges to the Texas law.”

The justices split 5–4 over the question, with the majority issuing an unsigned 1.5-page order explaining why they wouldn’t hear the case, and four justices writing dissenting opinions.

It was the first significant abortion decision that involved the court’s newest justice, Amy Coney Barrett. She joined Samuel Alito, Neil Gorsuch, Brett Kavanaugh, and Clarence Thomas in voting to deny injunctive relief to the abortion organizations.

“To prevail in an application for a stay or an injunction, an applicant must carry the burden of making a ‘strong showing’ that it is ‘likely to succeed on the merits,’ that it will be ‘irreparably injured absent a stay,’ that the balance of the equities favors it, and that a stay is consistent with the public interest.”

The applicants had not met the burden, the majority ruled.

That means that the law in question, the Texas Heartbeat Act, will remain in effect for now. As many as 85% of all women who seek an abortion in Texas are now disqualified from doing so, according to court filings by the petitioners. They called the law “catastrophic” for their clinics, some of which they said would have to close.

The new law, known also by the name Senate Bill 8, or SB 8, requires a doctor to perform a test to detect a fetal heartbeat before performing an abortion. The doctor is prohibited from performing the abortion if a heartbeat is detected. That can be as early as about six weeks.

Justices John Roberts, Stephen Breyer, Sonia Sotomayor, and Elena Kagan wrote dissenting opinions, with Sotomayor fuming that the Texas law “is a breathtaking act of defiance… of this Court’s precedents.”

She wrote, “The Court’s order is stunning. 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.”

“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. Because the Court’s failure to act rewards tactics designed to avoid judicial review and inflicts significant harm on the applicants and on women seeking abortions in Texas, I dissent.”

Sotomayor was referring to novel provisions of the new Texas law dealing with enforcement of the ban. The law creates a cause of action allowing anyone to sue an abortion provider who helps a woman to get an abortion in violation of the bill’s provisions, and to seek damages of $10,000 per abortion. Any person who “aids or abets the performance or inducement of an abortion” could also be held liable, posing legal risks to staff working at abortion centers. State officials would not be involved directly in enforcement.

That poses a problem to the litigants seeking to overturn the law because the usual course of action in such cases is for the litigants to ask the courts to enjoin (order) the officials not to enforce the law. But the justices writing for the majority stated, “Federal courts enjoy the power to enjoin individuals tasked with enforcing laws, not the laws themselves.”

Roberts took issue with that. He wrote in his dissent, “The statutory scheme before the Court is not only unusual, but unprecedented. 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. The desired consequence appears to be to insulate the State from responsibility for implementing and enforcing the regulatory regime.”

Texas Values Action, a group that supported passage of the new law, wrote in a flyer about it, “The legislation enacting this law was drafted in a manner to prevent anyone from suing the state or its officials to enjoin (stop) the enforcement of the statute. The law’s strength lies in the fact that it is entirely enforceable by private citizens. Without a duty to enforce the statute, courts cannot preemptively prevent officers of the state from enforcing it.”

Roe v. Wade should be overturned,” the group said. But even in the absence of such a direct reversal, abortion opponents are getting increasingly bolder. “State laws banning or regulating abortion may now be easier to sustain,” the flyer says.

SB 8 itself states, “The legislature finds that the State of Texas never repealed, either expressly or by implication, the state statutes enacted before the ruling in Roe v. Wade, 410 U.S. 113 (1973), that prohibit and criminalize abortion unless the mother’s life is in danger.”

Senate Bill 8 took effect September 1, though it passed the legislature in May, by a vote of 18–12 in the Senate and 83–64 in the House. Governor Greg Abbott signed the law May 19. He remarked at the bill signing, “Our creator endowed us with the right to life… (this law) ensures that the life of every unborn child who has a heartbeat will be saved from the ravages of abortion.”

Originally published at https://www.honestaustin.com on September 2, 2021.

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Original reporting on local Austin news, Texas politics, and the economy. honestaustin.com