A divided Supreme Court late Wednesday refused to block a Texas abortion statute that bans the procedure as early as six weeks into pregnancy, drawing sharp criticism from President Biden and a pledge from House Speaker Nancy Pelosi (D-Calif.) to call a vote on legislation that would enshrine a woman's right to an abortion into federal law.
The court’s five most consistent conservatives — Justices Clarence Thomas and Samuel A. Alito Jr., plus President Donald Trump’s nominees to the court, Neil M. Gorsuch, Brett M. Kavanaugh and Amy Coney Barrett — said they would let the law stand while the legal battle over it continues.
But Chief Justice John G. Roberts Jr. joined the court’s three liberals to say he would have kept the law from being implemented while the legality of the law was weighed in court. He described the Texas statute’s enforcement plan as “not only unusual, but unprecedented” and said it deserved more exacting judicial scrutiny.
Justice Sonia Sotomayor was more heated in her dissent: “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.”
With abortion clinics in Texas declaring they would halt the newly banned procedures, and abortion opponents celebrating a major legal victory, Biden (D) said the high court’s action “unleashes unconstitutional chaos and empowers self-anointed enforcers to have devastating impacts.”
“And it not only empowers complete strangers to inject themselves into the most private of decisions made by a woman—it actually incentivizes them to do so with the prospect of $10,000 if they win their case,” Biden’s statement says. “For the majority to do this without a hearing, without the benefit of an opinion from a court below, and without due consideration of the issues, insults the rule of law and the rights of all Americans to seek redress from our courts.”
Pelosi said the law “unleashes one of the most disturbing, unprecedented and far-reaching assaults on health care providers – and on anyone who helps a woman, in any way, access an abortion – by creating a vigilante bounty system that will have a chilling effect.” She said the House, which has a slim Democratic majority, will vote on the Women’s Health Reproductive Act when it returns from recess later this month.
Abortion providers say the ban — which relies on private citizens to sue people who help women get forbidden abortions — effectively eliminates the guarantee in Roe v. Wade and subsequent Supreme Court decisions that women have a right to end their pregnancies before viability, and that states may not impose undue burdens on that decision.
It was specifically designed to turn away pre-enforcement challenges in federal courts. With the Supreme Court’s refusal to intervene, the most likely challenge will come after the law is used by a private citizen. Then the person sued could contest the constitutionality of the law, with the backing of abortion providers and abortion rights groups.
Abortion providers and their allies said they were stunned the Supreme Court did not at least block the law while court procedures continued.
“We are devastated that the Supreme Court has refused to block a law that blatantly violates Roe v. Wade,” said Nancy Northup, president and chief executive of the Center for Reproductive Rights (CRR), one of the groups suing Texas. “Right now, people seeking abortion across Texas are panicking. They have no idea where or when they will be able to get an abortion, if ever. Texas politicians have succeeded for the moment in making a mockery of the rule of law.”
Longtime abortion opponents claimed Wednesday as “a historic and hopeful day” in Texas, and some began soliciting tips on who might violate the ban.
The Pro-Life Action League, a coalition of antiabortion groups, praised Texas for “implementing a creative new policy that recognizes the child in the womb as a member of the human family and protects her from the violence of abortion.”
“We encourage the other 49 states to catch up with Texas and continue this historic expansion of human rights,” the group’s statement said.
The Texas case comes at a pivotal time for abortion rights, with Republican-led state legislatures across the country having enacted increasingly restrictive laws, many of which have been blocked.
The Supreme Court this fall will consider one such statute — Mississippi’s ban on most abortions after 15 weeks. Antiabortion activists have urged the court to use that case to overturn the 1973 Roe decision.
In addition, many states, including Texas, have passed “trigger bills,” which would almost immediately outlaw all abortions within their borders if Roe is overturned.
Federal judges across the country have cited Roe and other precedents in blocking six-week bans on abortion in other states before they took effect. But the lawsuits that stopped those statutes targeted government officials who would enforce the bans, which proponents dub “heartbeat bills” because they say that is when a doctor can first detect a fetal heartbeat. Doctors opposed to the bills dispute that description, saying the fluttering that is detected cannot exist outside the womb.
The Texas law, in contrast, empowers individuals to bring legal action in civil court against those who help women seeking a prohibited abortion.
The Supreme Court’s unsigned opinion Wednesday night said those challenging the law could not show they were suing the right people, because government officials cannot enforce the law. The legal challenge had targeted state judges and court clerks, who would have to accept the paperwork required to launch lawsuits against abortion providers or abettors.
“Federal courts enjoy the power to enjoin individuals tasked with enforcing laws, not the laws themselves,” the opinion said. “And 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.”
The majority said those challenging the statute “have raised serious questions regarding the constitutionality of the Texas law” and stressed that the order “is not based on any conclusion about the constitutionality of Texas’s law, and in no way limits other procedurally proper challenges to the Texas law, including in Texas state courts.”
Roberts replied that was all the more reason to keep the law from going into effect.
The “consequences of approving the state action, both in this particular case and as a model for action in other areas, counsel at least preliminary judicial consideration before the program devised by the State takes effect,” he wrote.
Liberal Justices Sotomayor, Stephen G. Breyer and Elena Kagan joined Roberts, but each wrote separate opinions saying the Texas law clearly violated the court’s precedents regarding a woman’s right to an abortion.
Sotomayor’s was the most severe. The Texas law “is a breathtaking act of defiance — of the Constitution, of this Court’s precedents, and of the rights of women seeking abortions throughout Texas,” she wrote, criticizing her colleagues in the majority for rewarding the state’s “gambit.”
Sotomayor usually ends such opinions, “I respectfully dissent.” In this one, she wrote simply, “I dissent.”
“I wish I could say this decision was surprising,” Joe Nelson, a doctor at Whole Woman’s Health, an abortion clinic in Texas,said Thursday morning. “But this was something all of us thought was likely.”
Patients coming into the clinic want to know how long the ban will be in effect, Nelson said, but he has nothing to tell them. “This law could go away in a week, it could be a month, it could be a year,” he said. “We have no idea what to expect.”
On Wednesday, Nelson said, he saw a patient who had taken medication to induce an abortion before the ban took effect. The medication abortion had failed, a rare outcome for that procedure. She is more than six weeks pregnant, so it would now be illegal for the clinic to terminate her pregnancy through another procedure.
“Not only does she have to continue the pregnancy — but it’s a pregnancy that’s higher risk because of the medication she took,” Nelson said, describing how he sat with the woman in the clinic as she cried.
Abortion providers and advocacy groups challenged the Texas law in July.
A U.S. District Court judge in Austin said the case could proceed and scheduled a hearing for Monday to consider whether to block the law. But the U.S. Court of Appeals for the 5th Circuit, which reviews appeals from Texas, called off the hearing.
That action led to the emergency petition to the Supreme Court requesting a stay of the law. Such requests don’t receive the full briefing and argument that accompany other Supreme Court actions, and are done somewhat on the fly.
Other recent emergency petitions have led to the court ending a national ban on evictions that the Centers for Disease Control and Prevention said was warranted because of the pandemic, as well as part of a state ban in New York, and telling the Biden administration to reinstate a Trump-era policy requiring asylum seekers to remain outside the United States.
In all three of those cases, the court’s three liberal justices dissented.
Even though the Texas law was designed to make it difficult for federal courts to intervene, liberal and women’s rights groups blasted the court for the inaction that allowed the statute, known by its bill number, S.B. 8, to take effect.
“By refusing to rule on Texas’s near-ban on abortions, the Supreme Court allows a horrific, anti-woman law to take effect in the state,” the League of Women Voters said in a statement.
Lawyers for abortion providers told the Supreme Court on Tuesday that the statute would “immediately and catastrophically reduce abortion access” in Texas and probably force more clinics to close.
About 85 to 90 percent of women who obtain abortions in Texas are at least six weeks into pregnancy, meaning the law would prohibit nearly all abortions in the state.
“Patients will have to travel out of state — in the middle of a pandemic — to receive constitutionally guaranteed health care. And many will not have the means to do so,” CRR’s Northrup said in a statement. “It’s cruel, unconscionable, and unlawful.”
In response, Texas Attorney General Ken Paxton (R) said the Supreme Court does not have jurisdiction to act against the law at this point, and that any legal challenges would have to wait until someone brought a civil action against an abortion provider or someone who aids the woman.
The abortion providers, Paxton wrote in his brief to the court, “have not shown that they will be personally harmed by a bill that may never be enforced against them by anyone.”
Individuals who are sued under the ban could be required to pay the person who brought the lawsuit at least $10,000 for each abortion the defendant was involved in. Critics say the law places a “bounty” on the heads of those who assist with abortions.
Sen. Patty Murray (D-Wash.), who chairs the Committee on Health, Education, Labor and Pensions, urged the Senate to “act legislatively to protect the legal right to abortion for every American, regardless of where they live.”
“If you disagree with the idea that a complete stranger could, legally, demand $10,000 from you just because they disagree with your personal decisions, you should find this Texas anti-abortion ban as much of a nightmare as I do,” she said in a statement Wednesday.
Whole Woman’s Health locations in Texas were not performing any abortions on Wednesday, to ensure they are fully complying with the new law, said Sonja Miller, the director of people and culture at the network’s Austin clinic.
Nelson, the doctor at Whole Woman’s Health, said he had to turn away multiple patients who came in for ultrasound appointments on Wednesday, which are required in Texas 24 hours before an abortion. These patients thought they were under six weeks gestation, Nelson said, but were already past the legal limit.
A group of abortion opponents gathered Wednesday morning outside the clinic, one of three in Austin that offer abortions. Celie Harden knelt in the dirt, rosary in hand, and prayed, even as a man drove past yelling profanities at the group.
Harden said she thought it was “fantastic” that regular citizens now have the ability to sue clinics and others who help facilitate illegal abortions. “It’s like a citizen’s arrest. If someone runs through a red light right in front of you, you go to a policeman and say, ‘Hey, did you see that?’ ”
Texas Right to Life began soliciting “anonymous tips” on its website and asking for volunteers to “join the team of pro-lifers working to enforce” the law. An online form asks tipsters to submit information about how the abortion ban may have been violated and to name a clinic or doctor potentially involved. The organization says it will “ensure that these lawbreakers are held accountable for their actions.”
In Fort Worth, the Whole Woman’s Health clinic had 27 patients left in the waiting room Tuesday night who were seeking to end their pregnancies. One longtime physician who was on call was in tears, concerned about the approaching midnight deadline.
Outside the clinic, antiabortion advocates had set up lights in the parking lot.
“We were under surveillance. This is not abstract — this is real for our team,” said Amy Hagstrom Miller, chief executive of Whole Woman’s Health, which is the lead challenger to S.B. 8 in court. “This morning, I woke up feeling deep sadness. I’m worried. I am numb.”
She and other providers and advocates said they would keep fighting the bill and pushing for access to a full range of reproductive health care for women, including directing women to other states where it is still legal to terminate their pregnancies.
“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,” Miller said.
Heather Gardner, executive director of the antiabortion Central Texas Coalition for Life, said her organization will start distributing fliers explaining the ban to abortion clinics in that part of the state. Although Gardner said she does not expect to file lawsuits herself to enforce the ban, she said her organization would advise people who come to her to report any illegal abortions.
“We would do what we could to see what legal action could be taken,” Gardner said. “We wouldn’t want to let that go, because they need to be held accountable.”
Wax-Thibodeaux reported from Lubbock, Tex., and Kitchener reported from Austin.
