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SCOTUS Liberals Decry ‘Stunning’ Inaction on ‘Unconstitutional’ Texas Abortion Law: Conservative Justices Buried Their ‘Heads in the Sand’

WASHINGTON, DC - FEBRUARY 28: (L-R) Supreme Court Chief Justice John Roberts, Supreme Court Associate Justice Anthony Kennedy, Supreme Court Associate Justice Stephen Breyer, Supreme Court Associate Justice Sonia Sotomayor and Supreme Court Associate Justice Elena Kagan look on as U.S. President Donald Trump addresses a joint session of the U.S. Congress on February 28, 2017 in the House chamber of the U.S. Capitol in Washington, DC. Trump's first address to Congress focused on national security, tax and regulatory reform, the economy, and healthcare. (Photo by Alex Wong/Getty Images)

Justices Stephen Breyer, Sonia Sotomayor, and Elena Kagan listen to then-President Donald Trump’s address before a joint session of congress in a February 28, 2017 file photo.

The Supreme Court of the United States issued a 5-4 order shortly before midnight Wednesday that refused to block the implementation of a novel Texas anti-abortion law. The court’s order came nearly twenty-four hours after the law took effect. Given the lateness of the decision, it was a nearly foregone conclusion that the majority of the court did not agree that the law should be blocked.

Chief Justice John Roberts dissented against the court’s decision not to immediately block the Texas law from taking effect and was joined by Justices Stephen Breyer and Elena Kagan. From here, Justices Breyer, Kagan and Sonia Sotomayor penned dissents of their own that were highly critical of the conservative majority. Breyer, Kagan, and Sotomayor each joined one another’s dissents, but Roberts did not himself join any of the others who wished to block implementation of the law immediately.

The Texas law, which Law&Crime has detailed elsewhere, allows private citizens to sue providers who abort embryos whose cells have begun the process of functioning as a human heart. The law is said to therefore ban abortion procedures starting at about six weeks after conception. It refers to itself as a “fetal heartbeat” law — even though a fetus isn’t a fetus until eight weeks after conception. (It’s technically still an embryo.) The law also applies to anyone who “knowingly engages in conduct that aids or abets the performance or inducement of an [offending] abortion, including paying for or reimbursing the costs of an abortion through insurance or otherwise.”

In an affront to the general conservative principle of tort reform, the Texas law gives literally anyone standing to sue over abortions performed after about six weeks of development — all because the harm to society caused by abortion is in minds of the law’s drafters so serious that it is redressable by money damages paid to all those who take up such matters.

The court refused to block the Texas law because of the following procedural issues (most citations omitted):

To prevail in an application for a stay or an injunction, an applicant must carry the burden of making a “strong showing” that it is “likely to succeed on the merits,” that it will be “irreparably injured absent a stay,” that the balance of the equities favors it, and that a stay is consistent with the public interest. The applicants now before us have raised serious questions regarding the constitutionality of the Texas law at issue. But their application also presents complex and novel antecedent procedural questions on which they have not carried their burden. For example, federal courts enjoy the power to enjoin individuals tasked with enforcing laws, not the laws themselves. And it is unclear whether the named defendants in this lawsuit can or will seek to enforce the Texas law against the applicants in a manner that might permit our intervention. Clapper v. Amnesty Int’l USA, 568 U. S. 398, 409 (2013) (“threatened injury must be certainly impending” (citation omitted)). The State has represented that neither it nor its executive employees possess the authority to enforce the Texas law either directly or indirectly. Nor is it clear whether, under existing precedent, this Court can issue an injunction against state judges asked to decide a lawsuit under Texas’s law. Finally, the sole private-citizen respondent before us has filed an affidavit stating that he has no present intention to enforce the law. In light of such issues, we cannot say the applicants have met their burden to prevail in an injunction or stay application. In reaching this conclusion, we stress that we do not purport to resolve definitively any jurisdictional or substantive claim in the applicants’ lawsuit. In particular, this order is not based on any conclusion about the constitutionality of Texas’s law, and in no way limits other procedurally proper challenges to the Texas law, including in Texas state courts.

The foregoing suggests the court is at least open to hearing constitutional challenges to the law — which was clearly designed to evade review by the federal courts — in the future.

Chief Justice Roberts led the charge on the first dissent.

“The statutory scheme before the Court is not only unusual, but unprecedented,” Roberts 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.”

“I would grant preliminary relief to preserve the status quo ante—before the law went into effect—so that the courts may consider whether a state can avoid responsibility for its laws in such a manner,” Roberts continued. He then openly worried about the possibility that future regulatory regimes could follow the model adopted by Texas:  “the consequences of approving the state action, both in this particular case and as a model for action in other areas, counsel at least preliminary judicial consideration before the program devised by the State takes effect.”

Roberts underscored the need for a full constitutional review of the law:

Although the Court denies the applicants’ request for emergency relief today, the Court’s order is emphatic in making clear that it cannot be understood as sustaining the constitutionality of the law at issue. But although the Court does not address the constitutionality of this law, it can of course promptly do so when that question is properly presented. At such time the question could be decided after full briefing and oral argument, with consideration of whether interim relief is appropriate should enforcement of the law be allowed below.

Obviously, the majority of the court’s justices — Clarence Thomas, Samuel Alito, Neil Gorsuch, Brett Kavanaugh, and Amy Coney Barrett — disagreed entirely. But the remaining liberal justices came out in force. Justice Breyer began with a walk through the major abortion decisions of the last 50 years:

Texas’s law delegates to private individuals the power to prevent a woman from obtaining an abortion during the first stage of pregnancy. But a woman has a federal constitutional right to obtain an abortion during that first stage. Planned Parenthood of Southeastern Pa. v. Casey, 505 U. S. 833, 846 (1992); Roe v. Wade, 410 U. S. 113, 164 (1973). And a “State cannot delegate . . . a veto power [over the right to obtain an abortion] which the state itself is absolutely and totally prohibited from exercising during the first trimester of pregnancy.” Planned Parenthood of Central Mo. v. Danforth, 428 U. S. 52, 69 (1976) (internal quotation marks omitted). Indeed, we have made clear that “since the State cannot regulate or proscribe abortion during the first stage . . . the State cannot delegate authority to any particular person . . . to prevent abortion during that same period.” Ibid. The applicants persuasively argue that Texas’s law does precisely that.

Breyer then pointed to a Planned Parenthood of South Texas website which immediately counsels patients to, in essence, go away.

A screengrab shows the Planned Parenthood of South Texas website.

A screengrab shows the Planned Parenthood of South Texas website as it appears on Thursday, Sept. 2, 2021.

“We have permitted those whom a law threatens with constitutional harm to bring pre-enforcement challenges to the law where the harm is less serious and the threat of enforcement less certain than the harm (and the threat) here,” Breyer said while citing a plethora of cases to back up his point.  “I recognize that Texas’s law delegates the State’s power to prevent abortions not to one person (such as a district attorney) or to a few persons (such as a group of government officials or private citizens) but to any person. But I do not see why that fact should make a critical legal difference.”

“There may be other not-very-new procedural bottles that can also adequately hold what is, in essence, very old and very important legal wine: The ability to ask the Judiciary to protect an individual from the invasion of a constitutional right—an invasion that threatens immediate and serious injury,” Breyer also said.

Justice Sotomayor’s language was, as usual, more harsh (citations omitted):

The Court’s order is stunning. 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. Last night, the Court silently acquiesced in a State’s enactment of a law that flouts nearly 50 years of federal precedents. Today, the Court belatedly explains that it declined to grant relief because of procedural complexities of the State’s own invention. Because the Court’s failure to act rewards tactics designed to avoid judicial review and inflicts significant harm on the applicants and on women seeking abortions in Texas, I dissent.

“The Act is clearly unconstitutional under existing precedents,” Sotomayor continued. “The respondents do not even try to argue otherwise. Nor could they: No federal appellate court has upheld such a comprehensive prohibition on abortions before viability under current law.”

“In effect, the Texas Legislature has deputized the State’s citizens as bounty hunters, offering them cash prizes for civilly prosecuting their neighbors’ medical procedures,” Sotomayor added.  “Taken together, the Act is a breathtaking act of defiance—of the Constitution, of this Court’s precedents, and of the rights of women seeking abortions throughout Texas.”

In a footnote, Sotomayor cited a CNN article to illustrate the scene on the ground:

“The Court’s inaction has had immediate impact. Two hours before the [Texas] Act took effect, one applicant reported that its waiting rooms were ‘filled with patients’ urgently seeking care while ‘protesters [we]re outside, shining lights on the parking [lot].'”

She continued with a few slams against the majority’s understanding of its own job (citations omitted):

Today, the Court finally tells the Nation that it declined to act because, in short, the State’s gambit worked. The structure of the State’s scheme, the Court reasons, raises “complex and novel antecedent procedural questions” that counsel against granting the application, just as the State intended. This is untenable. It cannot be the case that a State can evade federal judicial scrutiny by outsourcing the enforcement of unconstitutional laws to its citizenry. Moreover, the District Court held this case justiciable in a thorough and well-reasoned opinion after weeks of briefing and consideration. At a minimum, this Court should have stayed implementation of the Act to allow the lower courts to evaluate these issues in the normal course. Instead, 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. 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.

Justice Kagan called the Texas law “patently unconstitutional.”

“The Court thus rewards Texas’s scheme to insulate its law from judicial review by deputizing private parties to carry out unconstitutional restrictions on the State’s behalf,” Kagan wrote. “As of last night, and because of this Court’s ruling, Texas law prohibits abortions for the vast majority of women who seek them—in clear, and indeed undisputed, conflict with Roe and Casey.”

Kagan went on to slam the court’s use of its so-called “shadow docket” — that is, the court’s docket of emergency requests for injunctions and other relief not directly on the merits:

Today’s ruling illustrates just how far the Court’s “shadow-docket” decisions may depart from the usual principles of appellate process. That ruling, as everyone must agree, is of great consequence. Yet the majority has acted without any guidance from the Court of Appeals—which is right now considering the same issues. It has reviewed only the most cursory party submissions, and then only hastily. And it barely bothers to explain its conclusion—that a challenge to an obviously unconstitutional abortion regulation backed by a wholly unprecedented enforcement scheme is unlikely to prevail. In all these ways, the majority’s decision is emblematic of too much of this Court’s shadow-docket decisionmaking—which every day becomes more unreasoned, inconsistent, and impossible to defend. I respectfully dissent.

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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.