Supreme Court again refuses to block Texas abortion law

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The court turned down a request from officials in Texas to use the cases to decide whether to overturn the right to abortion established in 1973 in Roe v. Wade

The Supreme Court on Friday once again refused to immediately block a Texas law that banned most abortions after six weeks. But the justices agreed to fast-track their consideration of appeals from the Justice Department and abortion providers in Texas, scheduling arguments for Nov. 1.

Only Justice Sonia Sotomayor filed a dissent.

“For the second time, the court is presented with an application to enjoin a statute enacted in open disregard of the constitutional rights of women seeking abortion care in Texas,” she wrote. “For the second time, the court declines to act immediately to protect these women from grave and irreparable harm.”

But she added she welcomed the court’s decision to hear arguments in the two cases, which will apparently be limited to the procedural question of whether the Texas law, SB 8, is subject to review in federal court given its novel structure.

The court said it would decide this question in the federal government’s appeal: “May the United States bring suit in federal court and obtain injunctive or declaratory relief against the state, state court judges, state court clerks, other state officials or all private parties to prohibit SB 8 from being enforced?”

The court turned down a request from officials in Texas to use the cases to decide whether to overturn the right to abortion established in 1973 in Roe v. Wade.

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That question is already before the court in a case challenging a Mississippi law that bans most abortions after 15 weeks. Roe and other Supreme Court precedents, notably Planned Parenthood v. Casey in 1992, prohibit states from banning abortion before fetal viability, the point at which fetuses can sustain life outside the womb, or about 22 to 24 weeks into a pregnancy. The Mississippi case will be argued Dec. 1, a month after the Texas case.

The Texas law, known as Senate Bill 8, was designed to evade review in federal court.

Usually, a lawsuit seeking to block a law because it is unconstitutional would name state officials as defendants. However, the Texas law, which makes no exceptions for pregnancies resulting from incest or rape, bars state officials from enforcing it and instead deputises private individuals to sue anyone who performs the procedure or “aids and abets” it.

The patient may not be sued, but doctors, staff members at clinics, counsellors, people who help pay for the procedure or drive them to it are all potential defendants. Plaintiffs, who do not need to live in Texas, have any connection to the abortion or show any injury from it, are entitled to $10,000 and their legal fees recovered if they win. Prevailing defendants are not entitled to legal fees.

The Supreme Court’s earlier encounter with the case left the justices bitterly divided.

In an unsigned opinion in that earlier case, the majority cited “complex and novel” procedural obstacles to blocking the law and stressed that it was not ruling on the constitutionality of the law.

The majority wrote that its ruling “in no way limits other procedurally proper challenges to the Texas law, including in Texas state courts.” Officials in Texas have said that providers can challenge the law by violating it, getting sued and asserting the law’s unconstitutionality as part of their defence.

Chief Justice John Roberts joined the court’s three more liberal members in dissent in the earlier case. All four dissenting justices filed opinions.

“The court’s order is stunning,” Sotomayor wrote in her dissent at the time. “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.”

“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,” Sotomayor wrote. “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.”

Roberts wrote that he would have blocked the law while appeals moved forward.

“The statutory scheme before the court is not only unusual, but unprecedented,” he wrote. “The legislature has imposed a prohibition on abortions after roughly six weeks, and then essentially delegated enforcement of that prohibition to the populace at large. The desired consequence appears to be to insulate the state from responsibility for implementing and enforcing the regulatory regime.”

After the Supreme Court rejected the providers’ request for emergency relief, the Justice Department then filed its own challenge to the law, one that it said was not subject to the procedural barriers the providers had faced.

On Oct. 6, Judge Robert Pitman of the U.S. District Court in Austin ruled for the federal government, granting it a preliminary injunction forbidding the state, its officials and private individuals acting in concert with them for enforcing the law.

“That other courts may find a way to avoid this conclusion is theirs to decide,” he wrote. “This court will not sanction one more day of this offensive deprivation of such an important right.”

An injunction was an appropriate response, Pitman wrote, to a law that both violated the Constitution and was designed to evade judicial review.

“Fully aware that depriving its citizens of this right by direct state action would be flagrantly unconstitutional,” he wrote, “the state contrived an unprecedented and transparent statutory scheme to do just that.”

A divided three-judge panel of the U.S. Court of Appeals for the 5th Circuit, in New Orleans, stayed Pitman’s ruling, reinstating the law. The Justice Department then filed an application asking the Supreme Court to lift the stay.

“SB 8 is plainly unconstitutional under this court’s precedents,” wrote Brian Fletcher, the acting solicitor general. “Texas has not seriously argued otherwise.”

“SB 8 is an affront to the United States’ sovereign interests in maintaining the supremacy of federal law and ensuring that the traditional mechanisms of judicial review endorsed by Congress and this court remain available to challenge unconstitutional state laws,” he wrote.

Ken Paxton, Texas’ attorney general, responded that the federal government was powerless to challenge the state’s abortion law.

“At bottom, the federal government’s complaint is that SB 8 is difficult to effectively enjoin,” Paxton wrote. “But there is no requirement that a state write its laws such that they can be easily enjoined.”