However, Chief Justice John Roberts joined the court’s three liberals in publicly declaring that the court erred in refusing to grant the emergency motion to suspend Texas law. In a highly unusual move for a case over the court’s so-called shadow dossier, the four dissenters wrote opinions that lamented the court’s ruling.
“The court’s order is astounding,” wrote Judge Sonia Sotomayor. “Presented with a request to ban a clearly unconstitutional law designed to prohibit women from exercising their constitutional rights and evading judicial scrutiny, a majority of judges chose to stick their heads in the sand . … The court’s inability to act rewards tactics designed to avoid judicial review and inflicts significant harm on plaintiffs and women seeking abortions in Texas. “
Judge Stephen Breyer said the new law’s reliance on individuals rather than prosecutors to manage the enforcement, which would go through civil lawsuits, should not immunize it from litigation in the courts.
“I acknowledge that Texas law delegates the power of the state to prevent abortions not to one person (such as a district attorney) or a few people (such as a group of government officials or private citizens), but to anyone. But I do I don’t see why this fact should make a critical legal difference, “Breyer wrote.
Judge Elena Kagan has spent much of her dissent criticizing the tribunal for its increasing reliance on its emergency role to make decisions of great importance to the country, without the benefit of a full briefing or arguments oral.
“Today’s decision illustrates how the court’s rulings in a mock trial can deviate from normal appellate principles,” Kagan wrote. “The majority decision is emblematic of too much of this Court’s shadow decision-making – which is becoming more unreasonable, inconsistent and impossible to defend with each passing day.”
Roberts called the Texas legislation “not only unusual, but unprecedented.” His dissent was more reserved than that of the Liberals, but he feared that the blessing of a bill like the one passed in the Lone Star State would create a model for other states seeking to enforce laws of questionable constitutionality for some time. .
“State defendants argue that they cannot be prevented from applying their rules because they do not apply them in the first place. I would grant a preliminary measure to preserve the status quo ante – before entry into force. force of the law – so that courts can consider whether a state can evade responsibility for its laws in this way, “Roberts wrote.” The defendants argue that existing doctrines prohibit judicial intervention, and they can be correct … But the consequences of approving state action, both in this particular case and as a model for action in other areas, advise at least a preliminary judicial consideration before the government-designed program does not take effect. ”
Texas’ new law prohibits abortions after six weeks of pregnancy – a point at which many women may not even realize they are pregnant. More legal battles over the measure may return to the High Court in the weeks or months to come, but abortions may be difficult or impossible to obtain in Texas in the meantime. Judges have already agreed to hear a major abortion case this quarter: a case over a Mississippi law that seeks to ban abortion after 15 weeks of pregnancy.
Supreme Court majority order admits Texas law may be unconstitutional, but court majority said abortion providers challenging the law had not reached the high bar needed to seek redress at the start of a trial.
“The applicants who are now before us have raised serious questions about the constitutionality of the Texas law in question. But their request also presents complex and new procedural issues on which they have not borne their burden, ”says the order.
Texas law allows private citizens, rather than the government, to enforce the abortion ban and to sue health care providers or anyone who helps someone get an abortion. The single enforcement mechanism makes it more difficult for clinics or other potential challengers to establish court status or find a single target to prosecute.