The conservative U.S. Supreme Court issued an unsigned order in the dead of night Wednesday leaving Texas’ draconian abortion ban in place, a move that effectively overturns Roe v. Wade and imperils reproductive rights across much of the United States.
The high court’s decision—against which Justices Sonia Sotomayor, Elena Kagan, Stephen Breyer, and John Roberts dissented—lets stand the most restrictive abortion ban in the country, an unprecedented law that deputizes private individuals to sue anyone who performs an abortion or “aids and abets” one after around six weeks of a pregnancy.
The law’s empowerment of private citizens rather than state officials to enforce the abortion ban was designed to make the new restrictions difficult to challenge in court. Plaintiffs who win their lawsuits against abortion providers and others—potentially including those who drive a person to a clinic to obtain the procedure—are entitled to $10,000 and the recovery of their legal fees, a reward that reproductive rights advocates have characterized as a bounty.
In her blistering dissent (pdf) against the 5-4 decision, Sotomayor condemned the Supreme Court’s most conservative justices for opting to “bury their heads in the sand” when faced with a “flagrantly unconstitutional law engineered to prohibit women from exercising their constitutional rights and evade judicial scrutiny.”
The Texas law, Sotomayor noted, “equates to a near-categorical ban on abortions beginning six weeks after a woman’s last menstrual period, before many women realize they are pregnant, and months before fetal viability.”
“The act is clearly unconstitutional under existing precedents… The respondents do not even try to argue otherwise. Nor could they: No federal appellate court has upheld such a comprehensive prohibition on abortions before viability under current law,” Sotomayor continued. “Taken together, the act is a breathtaking act of defiance—of the Constitution, of this court’s precedents, and of the rights of women seeking abortions throughout Texas.”
Turning her attention to the conservative justices who refused to block the law—Brett Kavanaugh, Amy Coney Barrett, Neil Gorsuch, Samuel Alito, and Clarence Thomas—Sotomayor wrote that “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, through procedural entanglements of the state’s own creation.”
“The court should not be so content to ignore its constitutional obligations to protect not only the rights of women, but also the sanctity of its precedents and of the rule of law,” Sotomayor added.
Legal analysts and advocates warned that the high court’s ruling all but spells the end for Roe v. Wade, a landmark 1973 decision that established abortion as a constitutional right—a right that has long been in the crosshairs of the conservative movement.
“We can stop debating about whether the court overturned Roe v. Wade. They did. So what if it’s on a technicality? It’s not a technicality to the people forced to carry pregnancies to term against their will,” wrote Jessica Mason Pieklo, executive editor of Rewire News Group. “In the immediate, it means that Roe is dead letter law in Texas. And probably Mississippi and Louisiana—the other states in the Fifth Circuit Court of Appeals. And it means more bad news is coming.”
“But it doesn’t mean people stop needing access to abortion,” she continued. “Nor does it mean that providers will stop providing that care. After this week though, it is undeniable that the abortion landscape is radically changed—for generations.”
According to the Guttmacher Institute, 22 states across the U.S. currently have laws that could be used to restrict or gut abortion rights. The research organization notes in its latest round-up that nine states have “unconstitutional post-Roe restrictions that are currently blocked by courts but could be brought back into effect with a court order in Roe‘s absence.”
In Texas, the near-term consequence of the law—known as Senate Bill 8—could be the imminent closure of the massive state’s relatively few abortion clinics, many of which cannot withstand the risk of a wave of lawsuits.
“If this was a criminal ban, we’d know what this is and what we can and cannot do,” Jessica Rubino, a doctor at Austin Women’s Health Center, told the New York Times. “But this ban has civil implications. It requires a lawyer to go to court. It requires lawyers’ fees. And then $10,000 if we don’t win. What happens if everybody is sued, not just me?”
“My staff is nervous,” she added. “They’ve been asking, ‘What about our families?’”
Amy Hagstrom Miller, president and CEO of Whole Woman’s Health, said in a statement earlier Wednesday that “we are heartbroken that this law has not yet been blocked.”
“Last night, our waiting rooms were filled with patients and their loved ones, and our staff were pouring their hearts out trying to help every person they could up until 11:59 pm—the minute before S.B. 8 went into effect,” said Hagstrom Miller. “But today, we will be forced to turn away most Texans seeking an abortion. Anti-abortion politicians in Texas can no longer hide behind the guise of health or safety—this is an abortion ban, plain and simple. It robs Texans of their ability to make decisions about their health and their futures. We have been here before, and we’ll continue serving our patients however we legally can and fighting for their right to safe, compassionate abortion care.”
With fundamental reproductive rights under assault from the courts and Republican-led states, Democratic members of Congress are facing growing pressure to respond with legislative action.
In a joint statement on Wednesday, Congressional Pro-Choice Caucus co-chairs Rep. Diana DeGette (D-Colo.) and Rep. Barbara Lee (D-Calif.) and Congressional Progressive Caucus chair Rep. Pramila Jayapal (D-Wash.) said Congress must “immediately take action to enshrine the right to access abortion into federal law.”
“The House should immediately pass the Women’s Health Protection Act… to ensure that states like Texas cannot ban this critical health service, and we urge the Senate to do whatever is necessary to send it to the president’s desk,” the lawmakers said. “Congress must also continue to strike down other restrictions on access to abortion in federal law, including bans on insurance coverage like the Hyde Amendment.”
The three House Democrats also urged the Biden administration to uphold its “commitment to protecting the right to abortion.”
“We call on Attorney General Garland to explore whatever steps the Department of Justice can take to respond to this blatant violation of Texans’ constitutional rights,” they said. “Everyone—no matter their income, where they live, or how they’re insured—has the right to make their own decisions about their bodies and their lives, and we are committed to promoting policies that protect the reproductive freedom of all people.”
This work is licensed under a Creative Commons Attribution-Share Alike 3.0 License
Jake Johnson is a staff writer for Common Dreams. Follow him on Twitter: @johnsonjakep
