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Sotomayor Calls Texas Anti-Abortion Case ‘A Disaster for the Rule of Law,’ Accuses Fifth Circuit of ‘Egregious Distortion’ of Recent Supreme Court Decision


Justice Sonia Sotomayor appears in a file photo.

The U.S. Supreme Court on Thursday refused to issue a writ of mandamus — a legal device to jawbone a lower court into submission — in hotly contested and expansive litigation against a restrictive Texas abortion law.  The high court’s liberals were not impressed with their fellow justices’ inaction.

The Texas law at issue, S.B. 8, provides nearly limitless civil liabilities for doctors and anyone else who assists with an abortion after fetal cardiac activity is detected — usually about six weeks into pregnancy. Depending on one’s political persuasion, the measure was either ingeniously or infamously designed to evade judicial review. S.B. 8 explicitly does not involve enforcement mechanisms through executive branch state agencies — therefore, providing the courts with no government actors to enjoin in subsequent lawsuits.

Pro-choice critics — chief among them, abortion providers themselves — have long argued that the bill unconstitutionally burdens a pregnant person’s ability to choose an abortion; the Trump-appointed conservative Supreme Court supermajority allowed S.B. 8 to take effect anyway over the dissent of the court’s three remaining liberals and Chief Justice John Roberts. It later strictly narrowed a lawsuit which sought to challenge the Lone Star State’s anti-abortion measure by limiting the specific types of defendants who could be sued. The U.S. Department of Justice has also sued to challenge the ability of Texas lawmakers to effectively limit — albeit through private litigation — the right to an abortion prior to the point of fetal viability, which is the current constitutional standard.

Which brings us to the current refusal to issue the writ.  Petitioners Whole Woman’s Health, an abortion provider, filed papers with the high court on Jan. 3, 2022, which complained about the procedural history of the case after the Supreme Court narrowed the class of applicable defendants on Dec. 10, 2021.  In December, the court “effectively stood in the shoes of the Court of Appeals” to consider the issue that was then at hand. The Supreme Court settled the preliminary question of who could be sued by stating that litigation was “permissible against some of the named defendants but not others.”

The SCOTUS justices sent the case back to the Fifth Circuit Court of Appeals “for proceedings consistent” with its opinion which named a list of permissible defendants.

However, as attorneys for the pro-choice camp complained, the Fifth Circuit refused to send the case further back down the bottom of the federal judicial chain — the originating federal district court.  Instead, the Fifth Circuit punted a key question in the case to the Texas Supreme Court.  According to the petitioners, the federal Fifth Circuit wanted to know from the state’s highest court “whether the remaining defendants have enforcement authority” for S.B. 8 lawsuits.  (Federal courts sometimes certify questions for state courts when issues involve interpretations of state constitutions or state legal mechanisms — which, here, are at play with S.B. 8.)

The U.S. Supreme Court was asked (again) to intervene.  On Thursday, it refused and allowed the Fifth Circuit to proceed under its own volition.

The Supreme Court’s liberals were predictably miffed.

Justice Stephen Breyer, joined by fellow liberals Elena Kagan and Sonia Sotomayor, wrote one dissent.  He accused the Court of Appeals of having “ignored our judgment” to remand the case.

“It kept the case and certified questions about the licensing-official defendants to the Texas Supreme Court,” Breyer balked, via a dissent that barely broke into a second page.  “As a result, an unconstitutional 6-week abortion ban remains in effect in Texas—as it has for over four months.”

Sotomayor, who was in turn joined by Breyer and Kagan, elucidated for an additional seven pages.  She accused the Fifth Circuit of groveling to the state’s “delay tactics.”

It has been over four months since Texas Senate Bill 8 (S. B. 8) took effect. The law immediately devastated access to abortion care in Texas through a complicated private-bounty-hunter scheme that violates nearly 50 years of this Court’s precedents. Today, for the fourth time, this Court declines to protect pregnant Texans from egregious violations of their constitutional rights. One month after directing that the petitioners’ suit could proceed in part, the Court countenances yet another violation of its own commands. Instead of stopping a Fifth Circuit panel from indulging Texas’ newest delay tactics, the Court allows the State yet again to extend the deprivation of the federal constitutional rights of its citizens through procedural manipulation. The Court may look the other way, but I cannot.

Sotomayor continued by again highlighting the provisions of S.B. 8 which have duly aggrieved liberals and pro-choice advocates.

The law authorizes any person — regardless of relationship (or lack thereof ) to the woman, provider, or procedure at issue — to sue, for at least $10,000, anyone who provides abortion care, assists in the provision of such care, or intends to assist in the provision of such care after embryonic cardiac activity is detectable. This structure was designed to make it more complicated for courts to enjoin the law’s enforcement on a statewide basis. To maximize the burden of being sued, S. B. 8 also modifies the de- fault rules of procedure to an extraordinary extent.

Sotomayor noted that in the previous U.S. Supreme Court decision of December 2021, eight justices determined that the “the litigation must continue apace.” She also noted that even Justice Neil Gorsuch agreed subsequently to enter judgment immediately and without waiting the court’s standard 25 days.

“After this Court issued its judgment, however, the litigation stalled,” Sotomayor said.

She continued:

The Fifth Circuit should have immediately remanded this case to the District Court, allowing it to consider whether to issue preliminary relief. But Texas moved to certify to the Supreme Court of Texas the question this Court had just decided: whether state licensing officials had authority under state law to enforce S. B. 8. Texas never asked the Fifth Circuit to certify this question during its first pass through that court, nor did it ever ask this Court to do so. Even so, a Fifth Circuit panel indulged the request by scheduling oral argument. Judge [Stephen] Higginson dissented from the court’s decision to do so, explaining that he “did not read the Supreme Court’s judgment, especially in a case of this magnitude and acceleration, to countenance such delay.”

On January 3, 2022, the petitioners requested a writ of mandamus from this Court ordering the panel below to remand the case to the District Court. At argument before the Fifth Circuit four days later, one judge on the panel raised the notion that because this Court is considering a challenge to Roe v. Wade, 410 U. S. 113 (1973), the panel could “just sit on this until the end of June” rather than fulfill its obligation to apply existing precedent.

The challenge Sotomayor cited is Dobbs v. Jackson Women’s Health.  Oral arguments occurred in that case on Dec. 1, 2021.

“This Court could, and should, have granted a writ of mandamus ordering the panel below to withdraw certification and remand to the District Court,” Sotomayor concluded.

“Mandamus relief is an ‘extraordinary remedy’ appropriate for the ‘exceptional circumstances’ now before this Court, where a lower court’s failure to follow this Court’s clear dictates has left petitioners with ‘no other adequate means’ to enforce their ‘clear and indisputable’ rights,” she said, citing case law.  “This Court should not accept such an egregious distortion of its decision. I would grant the writ.”

The liberal justice then returned to address access to abortion — the core issue sometimes lost in procedural questions about who may be sued and how the case may be litigated.

The novel nature of S.B. 8, Sotomayor said, “left all manner of constitutional rights vulnerable to nullification” by states which seek to open the floodgates of a burgeoning sense of civil liability.

Sotomayor’s opinion suggests that she seems increasingly convinced that her aspirations are about to be dashed.

“I hoped that even with the case narrowed, the District Court could enter some mitigating relief, though not the complete relief to which I believed the petitioners were entitled,” she wrote.  She then portended what may be the upending of decades of abortion law — and maybe more:

I was wrong. Today’s decision shows that any hope that Whole Woman’s Health II might protect the Constitution’s guarantees in this case was illusory. As it turns out, Texas did not even have to amend its law to sidestep the minimal relief this Court left available. Instead, Texas wagered that this Court did not mean what little it said in Whole Woman’s Health II or, at least, that this Court would not stand behind those words, meager as they were. That bet has paid off. Despite this Court’s protestations over the “extraordinary solicitude” it gave this case and the narrowness of any dispute, it accepts yet another dilatory tactic by Texas. As a result, the District Court will remain powerless to address S. B. 8’s unconstitutional chill on abortion care, likely for months to come.

This case is a disaster for the rule of law and a grave disservice to women in Texas, who have a right to control their own bodies. I will not stand by silently as a State continues to nullify this constitutional guarantee. I dissent.

Sotomayor’s dissent, unlike Breyer’s in the instant case, omitted the word “respectfully.”  High court dissents almost always conclude with the word “respectfully” wedged between the phrase.  Breyer recently omitted the usual platitude in a dissent which ran counter to Justice Amy Coney Barrett‘s first majority opinion in another unrelated case, then revised his language it to include it.  Sotomayor’s omission of the usual phrase is duly noted given that recent history.

Read the refusal to grant the writ below:

[Photo by Allison Shelley/Getty Images]

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Aaron Keller holds a juris doctor degree from the University of New Hampshire School of Law and a broadcast journalism degree from Syracuse University. He is a former anchor and executive producer for the Law&Crime Network and is now deputy editor-in-chief for the Law&Crime website. DISCLAIMER:  This website is for general informational purposes only. You should not rely on it for legal advice. Reading this site or interacting with the author via this site does not create an attorney-client relationship. This website is not a substitute for the advice of an attorney. Speak to a competent lawyer in your jurisdiction for legal advice and representation relevant to your situation.