Conservative Supreme Court Majority Helps Texas Protect Abortion Ban
On Thursday afternoon, the US Supreme Court rejected a request from abortion providers to order a challenge to Texas’s extreme SB-8 abortion, and send the ban back to a federal district court. Instead, the majority of the Supreme Court opted to intercede, which means that the case will now go to the Texas Supreme Court.
The case, which was recently before the 5th US Circuit Court of Appeals, has been recently sent to the uber-conservative Texas Supreme Court, a move that is expected to add months to the legal proceedings. Abortion providers were hoping the US Supreme Court would intervene this week to direct the 5th Circuit to send the case back to the federal district court, where a judge had previously blocked the law banning abortion after six weeks.
In pursuing their case, medical abortion providers argued that failing to remit the case back to the original federal court would “derail indefinitely the timely resolution of the merits of the case” and “compound the ongoing harm to pregnant Texans under [the law].” Texas’ SB-8 law, which prohibits nearly all abortions after the six-week mark of pregnancy, has been in effect since Sept. 1 of last year.
The Supreme Court had previously ruled on Dec. 10 that the providers’ constitutional challenge to SB-8 could legally proceed against a group of state medical licensing officials, but not against the state-court judges and clerks whom the providers had also named as defendants in their challenge. The justices left the Texas law in place while the case continues in the lower courts, even though it conflicts with current Supreme Court precedent establishing a constitutional right to an abortion up until the point at which the fetus can survive outside the womb.
In a one-sentence order on Thursday afternoon, the conservative majority of the US Supreme Court turned down the providers’ request, ensuring that the litigation will remain at the Texas Supreme Court and not return to the federal district court for the foreseeable future. Three liberal justices – Stephen Breyer, Sonia Sotomayor, and Elena Kagan – dissented from the majority and specified why they would have granted the providers’ request to send the case back to the federal court.
Breyer issued a one-page dissent and was joined in his opinion by both Justices Sotomayor and Kagan. Breyer explained that he would have granted the providers’ request because the 5th Circuit had “ignored” the Supreme Court’s instructions in its Dec. 10 opinion. “As a result, an unconstitutional 6-week abortion ban remains in effect in Texas — as it has for over four months,” Justice Breyer made a point to explain.
The main and more bulky dissent came from Justice Sotomayor, who delivered a seven-page rebuke and was joined by both Breyer and Kagan. Sotomayor criticized the 5th Circuit’s decision to seek a ruling from the Texas Supreme Court as a “transparent effort” to work around the obstacle created by the legal challenge posed by abortion providers, rather than answer the legal question at hand.
In defending this point, Justice Sotomayor described the sentiments of one of the judges, who heard oral argument in the case, who had suggested that the court of appeals could “just sit on this until the end of June,” after which the Supreme Court could issue a decision overruling its landmark rulings in Roe v. Wade and Planned Parenthood v. Casey.
By rejecting the providers’ request to return the case immediately, Sotomayor explained that the Supreme Court had “accept[ed] yet another dilatory tactic by Texas.” As a result, Sotomayor declared that the federal district court “will remain powerless to address SB 8’s unconstitutional chill on abortion care, likely for months to come.” Although her colleagues in the majority “may look the other way,” said Justice Sotomayor, “I cannot.”
The American Civil Liberties Union (ACLU), one of the organizations representing the abortion providers, issued a statement saying the 5th Circuit is “needlessly delaying” the case by sending it to the Texas Supreme Court, and the providers note in their petition the appeals court’s actions could “derail” the proceedings “indefinitely” and harm Texans seeking abortions by keeping the law in place.
Amy Hagstrom Miller, the president and CEO of Whole Woman’s Health and Whole Woman’s Health Alliance said the following with regard to the recent ruling: “Make no mistake: Texans are still suffering every single day under this law. It breaks my heart every time our clinic staff are forced to deny pregnant people care and turn them away. This law is cruel and unconstitutional, and I am deeply disappointed that our judicial system has done very little to stop it.”
Call to Action:
For anyone who is interested in getting involved in this issue to help protest the recent rulings and to help preserve the precedent established under Roe v. Wade and Casey v. Planned Parenthood, there are several things that you can do to get involved:
Beginner Protester Level: So, you’ve decided to get involved and help the cause: WELCOME! If you are just starting out or don’t have the time to volunteer right now you can still do two simple things. The first is to follow two groups I am supporting on Twitter: Rise Up 4 Abortion Rights and Strike for Choice. You can also visit the websites of these groups for more information and/or to make quick donations in any amount both here and here.
Intermediate Protestor Level: Welcome back, it’s so good to see you! If you want to dedicate some of your time to helping preserve abortion protections for women all over America, please consider signing this letter of support and/or volunteering with Rise Up 4 Abortion here. (Please consider completing the beginner-level tasks above as well.)
Advanced Protestor Level: Welcome back, you make the world go ‘round! Please complete both the beginner and intermediate level tasks. Next, consider starting your own chapter of Strike for Choice, and/or join Rise Up 4 Abortion at the US Supreme Court tomorrow, January 22 at noon to help protest. If you are not able to attend the protest at the US Supreme Court on Saturday, everyone around the country can still take action by signing the statement and spreading the call to sign as well as the protest information on social media.
If you have any other questions about how to get involved, you can always DM me on Twitter or email me at avanderpool@gmail.com. Stay tuned to these organizations discussed above and to SHERO for the announcement of more protest opportunities and ways to get involved to help protect our right to choose.
Amee Vanderpool writes the SHERO Newsletter and is an attorney, published author, contributor to newspapers and magazines, and analyst for BBC radio. She can be reached at avanderpool@gmail.com or follow her on Twitter @girlsreallyrule.
Paid subscriptions and one-time tributes embedded in each article allow me to keep publishing critical and informative work that is sometimes made available to the public — thank you. If you like this piece and want to support independent journalism further, you can forward this article to others, get a paid subscription or gift subscription, or donate once, as much as you like today.
This whole slow-motion train is heading (as you noted) towards the end of the Roe v. Wade era. Republicans long ago realized the power of the courts in shaping our daily lives, and they did so well before the Democrats ever did. Shame on us for allowing it to happen, and though Democrats are now aware of the issue, shame on the Senate for not confirming more of President Biden's judicial nominees, who could help try to balance the equation SOMEWHAT. This is a problem decades in the making, however, so it will take a very long time to fix it, if it can ever be fixed.
Oh, one other thing (and it pains me incredibly to write this): The Supreme Court will be viewed increasingly as being illegitimate given that its rulings and pronouncements are not in keeping with the views of a majority of Americans (and not just with respect to abortion). It is being seen by more and more people as nothing more than the judicial arm of the Republican Party, and I can't say that this view is unjustified.