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Sotomayor Fears ‘Self-Induced Abortions,’ Says Texas ‘Heartbeat Act’ Reads Like Something From A ‘Virulent Defender of the Slaveholding South’

Associate Justice Sonia Sotomayor sits during a group photo of the Justices at the Supreme Court in Washington, DC on April 23, 2021.

Associate Justice Sonia Sotomayor sits during a group photo of the Justices at the Supreme Court in Washington, DC on April 23, 2021.

U.S. Supreme Court Justice Sonia Sotomayor issued a scathing dissent against the high court’s ruling Friday in Whole Woman’s Health v. Jackson. The court ruled that abortion clinics may continue raise some limited legal challenges against Texas’s restrictive “Heartbeat Bill” — but while those lawsuits are proceeding, the law will remain in effect.

Technically, Sotomayor’s decision was a partial concurrence and partial dissent. The justice agreed with the Court’s majority that abortion providers should be permitted to sue executive licensing officials, but she vehemently disagreed with the Court’s refusal to strike the entire statute down as an unconstitutional deprivation of well-settled constitutional rights.

Sotomayor began by bluntly recounting what Texas had done. “In open defiance of this Court’s precedents, Texas enacted Senate Bill 8,” she began, explaining that S.B. 8 — known as the “Heartbeat Act” — allows seemingly endless and limitless civil litigation against abortion providers who terminate pregnancies after approximately six weeks of fetal development. The result, she explains, is that abortion providers seeking to assist women in exercising their constitutional rights face the risk of lawsuits “by private bounty hunters.”

The upshots of the law, she argued, far transcend the theoretical.

“The chilling effect has been near total, depriving pregnant women in Texas of virtually all opportunity to seek abortion care within their home State after their sixth week of pregnancy,” Sotomayor wrote. For the women who can’t leave Texas, the justice painted a harsh picture: “their only alternatives are to carry unwanted pregnancies to term or attempt self-induced abortions outside of the medical system.”

The liberal justice refused to reserve her ire solely for Texas legislators. She also served up harsh words for her brethren: “[t]he Court should have put an end to this madness months ago, before S. B. 8 first went into effect. It failed to do so then, and it fails again today.” The majority’s ruling, she forecasted, “effectively invites other States to refine S. B. 8’s model for nullifying federal rights.” By doing so, “[t]he Court thus betrays not only the citizens of Texas, but also our constitutional system of government.”

Sotomayor systematically knocked down every aspect of Texas’s statute, which establishes a $10,000 minimum penalty for anyone who “performs, induces, assists, or even intends to assist an abortion.” The justice explained just what that means:  everyone from a doctor to a receptionist to an Uber driver who transports a woman to a clinic could be on the hook for at least five figures in damages — maybe more.

She began by detailing a list of the statute’s procedural anomalies — which she believed were unacceptable — by discussing how Texas essentially abandoned due process rights for those facing potential litigation. Creating a framework the justice called “uniquely punitive for those sued,” the statute subjects defendants to lawsuits in any county without the potential for a venue transfer or the standard defenses of issue or claim preclusion. It also authorizes harsh fee-shifting rules.

What’s more, the statute “purports to impose retroactive liability” in a number of ways, making abortion retroactively actionable “while Roe and Casey are in effect if this Court later overrules one of those cases,” Sotomayor noted. Such egregious behavior on the part of Texas legislature is untenable at the judicial level, the justice concluded:

To be sure, state courts cannot restrict constitutional rights or defenses that our precedents recognize, nor impose retroactive liability for constitutionally protected conduct. Such actions would violate a state officer’s oath to the Constitution. See U. S. Const., Art. VI, cl. 3. Unenforceable though S. B. 8 may be, however, the threat of its punitive measures creates a chilling effect that advances the State’s unconstitutional goals.

Whatever vexation the justice had with Texas, however, paled in comparison with her feelings toward her fellow justices for their failure to thwart Texas’s goals. Detailing century-old Supreme Court precedent in other cases in which a state attempted to circumvent the Constitution with onerous statutes, the justice remarked bitingly, “[u]ntil today, the Court had proven equal to those challenges.”

She elaborated, explaining that the Court’s majority erred in hinging its decision on the right to defend an action brought under S. B. 8 in a “neutral” Texas court. Calling the majority’s take “especially perverse,” the justice snapped, “the Texas court system no longer resembles a neutral forum for the adjudication of rights.” Rather, Texas’s law “refashions that system into a weapon and points it directly at the petitioners.”

In addition to attacking the many alleged shortcomings in the Court’s logic, Sotomayor was also critical of the majority’s abdication of its responsibility to answer tough questions. Justice Neil Gorsuch argued in his majority opinion that the petitioners should fail in part because no adequate remedy is available. “Instead, only further questions follow,” Gorsuch noted.

Sotomayor, however, found Gorsuch’s surrender to be unacceptably lacking:

Vexing though the Court may find these fact-intensive questions, they are exactly the sort of tailoring work that District Courts perform every day. The Court should have afforded the District Court an opportunity to craft appropriate relief before throwing up its hands and declaring the task unworkable.

Sotomayor, however, was not willing to confine her dissenting comments to arms-length procedural arguments. “My disagreement with the Court runs far deeper than a quibble over how many defendants these petitioners may sue,” she wrote. The true dispute, she wrote, “is over whether States may nullify federal constitutional rights by employing schemes like the one at hand.”

The Court’s majority has unwisely allowed that kind of maneuvering, likely to its own detriment, she suggested.

“This choice to shrink from Texas’ challenge to federal supremacy will have far-reaching repercussions,” Sotomayor warned. “I doubt the Court, let alone the country, is prepared for them.”

To underscore her point, the justice drew a parallel to the treatment of slavery by the Court. Calling the Texas statute “a brazen challenge to our federal structure,” Sotomayor charged that “[i]t echoes the philosophy of John C. Calhoun, a virulent defender of the slaveholding South who insisted that States had the right to ‘veto’ or ‘nullif[y]’ any federal law with which they disagreed.” In an insult-turned-threat leveled directly at the Court, Sotomayor quoted Calhoun as follows: “The Supreme Court’s interpretations of the Constitution are not the Constitution itself — they are, after all, called opinions.”

Without the judiciary to limit an intrusive state legislature, the justice wrote, trouble is to come that far transcends abortion rights. What will courts do if a state similarly legislates against a disfavored religious minority, she asked.

“Perhaps nothing at all, says this Court,” she answered. “I fear the Court, and the country, will come to regret that choice,” she lamented.

[image via Erin Schaff/Pool/Getty Images]

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Elura is a columnist and trial analyst for Law & Crime. Elura is also a former civil prosecutor for NYC's Administration for Children's Services, the CEO of Lawyer Up, and the author of How To Talk To Your Lawyer and the Legalese-to-English series. Follow Elura on Twitter @elurananos