Supreme Court Upholds New Texas Abortion Law, For Now
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J. Scott Applewhite/AP
What The Texas Abortion Ban Does — And What It Means For Other States
The court’s action came just before midnight on Wednesday, nearly a day after the law went into effect. Reproductive rights advocates late last week filed an emergency appeal with the court after a panel of the Fifth Circuit Court of Appeals cancelled a hearing that had been scheduled by a federal trial judge on whether to block the law.
Chief Justice Roberts, in dissent, said he would have temporarily blocked the law from going into effect in order to give the lower courts adequate time to hear and decide «whether a state can avoid responsibility for its laws» by «essentially delegat[ing] enforcement to…the populace at large.»
The case, he acknowledged, does present difficult and novel questions, but none of those questions had been thoroughly considered yet by the lower courts. Nor, Roberts said, had the cases been fully briefed or considered by lower court judges.
Joining Roberts’ opinion were liberal Justices Stephen Breyer and Elena Kagan. Each also wrote separately, as did Justice Sonia Sotomayor.
Breyer, citing the famous 1803 case of Marbury v. Madison, said that normally where a legal right is invaded, the law itself «provides a legal remedy by suit,» and this law, he suggested, does the opposite.
Justice Kagan, in her written dissent, said «Texas’s law delegates to private individuals the power to prevent a woman from obtaining an abortion during the first stage of pregnancy. But a woman has a federal constitutional right to obtain an abortion during that first stage,» a right that the Supreme Court has endorsed repeatedly over nearly a half century.
Justice Sotomayor used bolder language than the three other dissenters.
«The court’s order is stunning, » she wrote. «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….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.»
- Roe v Wade
- U.S. Supreme Court