Supreme Court refuses to block Texas six-week abortion ban
© WikiMedia (Debra Sweet)
Supreme Court refuses to block Texas six-week abortion ban

The US Supreme Court on Wednesday refused to block a Texas law banning abortions as early as six weeks into pregnancy, keeping intact the most restrictive anti-abortion law in the US.

Senate Bill 8 (SB 8), signed by Governor Greg Abbott in May, has banned abortion when an ultrasound can detect a “heartbeat,” which is often before a woman even knows she is pregnant. The law also empowers “the general populace at large” to sue not just abortion providers, but anyone else who helps a woman seek access to abortion—including a cab or Uber/Lyft driver giving a woman a ride to the clinic or someone providing financial assistance to obtain an abortion.

Private citizens who bring these suits do need to show any connection to the defendants and there are no exceptions for cases involving rape or incest. The law became effective midnight on Tuesday.

The Supreme Court denied a request for injunctive relief filed by Whole Woman’s Health and others (“plaintiffs”) to prevent the law from taking effect, stating that the plaintiffs failed to make a “strong showing” that they are likely to succeed on the merits, that they would be irreparably injured absent an injunction, that the balance of equities favor the plaintiffs and that an injunction is consistent with the public interest.

Specifically, the Court pointed to the state’s representation that “neither it nor its executive employees possess the authority to enforce the Texas law either directly or indirectly” and stated that it is unclear whether precedent permits it to issue an injunction against state judges presiding over a Texas lawsuit.

The Court also pointed to an affidavit filed by a private citizen and a defendant in this case, which stated that he has “no ‘present’ intention to enforce the law.” Thus, the Court concluded that the plaintiffs failed to meet their burden to prevail in an injunction and stated that “it is 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.”

However, the Court clarified that this order is not one on the merits of any substantive claims and does not speak to the constitutionality of Texas’s law, adding that the order “in no way limits other procedurally proper challenges” to SB8 “including in Texas state courts.”

Chief Justice John Roberts and Justices Stephen Breyer, Elena Kagan and Sonia Sotomayor dissented with each one writing a scathing dissent that is independently longer than the majority opinion. Justice Sotomayor wrote the longest and most scathing dissent of the four justices stating:

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…

No federal appellate court has upheld such a comprehensive prohibition on abortions before viability under current law. The Texas Legislature was well aware of this binding precedent. To circumvent it, the Legislature took the extraordinary step of enlisting private citizens to do what the State could not. The Act authorizes any private citizen to file a lawsuit against any person who provides an abortion in violation of the Act, “aids or abets” such an abortion (including by paying for it) regardless of whether they know the abortion is prohibited under the Act, or even intends to engage in such conduct…

Taken together, the Act is a breathtaking act of defiance—of the Constitution, of this Court’s precedent…

It cannot be the case that a State can evade federal judicial scrutiny by outsourcing the enforcement of unconstitutional laws to its citizenry. Moreover, the District Court held this case justiciable in a thorough and well-reasoned opinion after weeks of briefing and consideration. At a minimum, this Court should have stayed implementation of the Act to allow the lower courts to evaluate these issues in the normal course. Instead, the Court has rewarded the State’s effort to delay federal review of a plainly unconstitutional statute, enacted in disregard of the Court’s precedents…

Justices Breyer and Roberts similarly criticized the massive breadth afforded to private citizens in enforcing SB8 while Kagan criticized the majority for passing its order “Without full briefing or argument, and after less than 72 hours’ thought.”