By Amy Howe
September 2, 2021
Nearly 24 hours after a Texas law that bans nearly all abortions in the state went into effect, the Supreme Court on Wednesday confirmed what it had previously only implied through its failure to act the night before: The court rejected a request to block enforcement of the law, which abortion providers say will bar at least 85% of abortions in the state and will likely cause many clinics to close, while a challenge to its constitutionality is litigated in the lower courts. The vote was 5-4, with Chief Justice John Roberts joining the court’s three liberal justices – Stephen Breyer, Sonia Sotomayor and Elena Kagan – in dissent.
The case, Whole Woman’s Health v. Jackson, had come to the court on an emergency basis on Monday, with a group of abortion providers asking the justices to intervene. It was the first major test on abortion rights for the Roberts court since the death of Justice Ruth Bader Ginsburg in September 2020, and Ginsburg’s replacement by the conservative Justice Amy Coney Barrett was likely decisive in the outcome.
The court’s inaction on Tuesday night that allowed the Texas law to go into effect and its brief order on Wednesday night denying any relief to the abortion providers unquestionably represented a victory for abortion foes, but the five-justice majority emphasized (and Roberts in his dissent reiterated) that the court was not endorsing the constitutionality of the law. The ruling also revealed a court that is deeply divided, not only on the merits of the case but also on the procedures that the court uses to resolve these kinds of emergency appeals.
The law, known as S.B. 8, is one of several so-called “heartbeat bills” that Republican legislatures have enacted around the country as part of an effort to overturn Roe v. Wade and Planned Parenthood v. Casey, in which the Supreme Court held that the Constitution protects the right to have an abortion before a fetus can survive outside the womb. That benchmark, known as viability, occurs around 24 weeks of pregnancy, but S.B. 8 prohibits abortions after about six weeks of pregnancy – a time measured from the first day of the woman’s last menstrual period and before many people realize that they are pregnant. To make it harder to challenge the law in court, particularly before it went into effect, the Texas law does not rely on government officials to enforce the ban. Instead, it deputizes private individuals to bring lawsuits against anyone who either providers or “aids or abets” an abortion, and it establishes an award of $10,000 for a successful lawsuit.
Texas abortion providers went to federal court in July, seeking to block it before its Sept. 1 effective date. They argued (among other things) that the law violates their patients’ constitutional right to end a pregnancy before viability. When the district court denied the defendants’ motion to dismiss the case on Aug. 25, things moved quickly. The defendants went to the U.S. Court of Appeals for the 5th Circuit, which granted their request to put the remaining district-court proceedings, including an Aug. 30 hearing on the abortion providers’ request for a preliminary injunction, on hold. The court of appeals also denied the abortion providers’ request to fast-track the defendants’ appeal, prompting the providers to seek emergency relief in the Supreme Court on Monday afternoon.
In a one-paragraph, unsigned order issued just before midnight on Wednesday, the court acknowledged that the providers had “raised serious questions regarding the constitutionality of the Texas law.” But that was not enough to stop the law from going into effect, the court explained, because of the way the law operates. Specifically, the court observed, it wasn’t clear whether the state officials – a judge and court clerk – and the anti-abortion activist whom the abortion providers had named as defendants “can or will seek to enforce the Texas law” against the providers in a way that would allow the court to get involved in the dispute at this stage.
In his dissent, which was joined by Breyer and Kagan, Roberts described the Texas scheme as “unprecedented.” By deputizing private citizens to enforce the law, Roberts stressed, the law “insulate[s] the State from responsibility.” He wrote that because of the novelty and significance of the question, he would stop the law from going into effect to preserve the status quo and allow courts to consider “whether a state can avoid responsibility for its laws in such a manner.”
Breyer wrote his own dissent, which was joined by Kagan and Sotomayor, in which he acknowledged the procedural challenges posed by the Texas law but expressed skepticism as to “why that fact should make a critical legal difference” when “the invasion of a constitutional right” is at issue.
Sotomayor, joined by Breyer and Kagan, described the court’s order as “stunning.” “Presented with an application to enjoin a flagrantly unconstitutional law engineered to prohibit women from exercising their constitutional rights and evade judicial scrutiny,” she wrote, “a majority of the Justices have opted to bury their heads in the sand.”
Both Breyer and Sotomayor also noted that, within the first day that the Texas was in effect, clinics in the state began turning away most or all abortion patients.
Kagan’s dissent, joined by Breyer and Sotomayor, focused largely on the process by which the court reached its ruling on Wednesday night. She complained that, “[w]ithout full briefing or argument, and after less than 72 hours’ thought, this Court greenlights the operation of Texas’s patently unconstitutional law banning most abortions.” The result, she concluded, “is emblematic of too much of this Court’s shadow-docket decisionmaking — which every day becomes more unreasoned, inconsistent, and impossible to defend.”
The Texas case will now return to the lower courts, where litigation will continue. Meanwhile, the justices have already agreed to weigh in on a challenge to the constitutionality of a Mississippi law that would ban most abortions after the 15th week of pregnancy; they are likely to hear oral argument in that case in December, with a decision to follow sometime next year. In that case, Mississippi and its supporters have urged the court to formally overturn Roe and Casey.