A Texas law went into effect on Wednesday that prohibits abortions once medical professionals can detect cardiac activity, usually around six weeks and before many women know they’re pregnant.
In a 5-4 vote, the Supreme Court late Wednesday night failed to approve an emergency appeal from abortion providers and others that looked to block the law.
The four justices who dissented were Chief Justice John Roberts, Justice Stephen Breyer, Justice Sonia Sotomayor, and Justice Elena Kagan.
In their dissents against the majority ruling allowing the Texas abortion law to take effect, here is what the justices had to say.
Dissent of Chief Justice Roberts, joined by Justice Breyer and Justice Kagan
Roberts, a conservative appointed by former president George W. Bush who has increasingly become a swing vote, criticized the Texas abortion ban for allowing the state to avoid responsibility by allowing private citizens to enforce the law through civil litigation against providers or anyone who helped a woman access abortion after six weeks.
“The statutory scheme before the Court is not only unusual but unprecedented,” wrote Roberts. “The desired consequence appears to be to insulate the State from responsibility for implementing and enforcing the regulatory regime.”
In his dissent, Roberts said he wants the law to be put on hold for the courts to decide whether a state can avoid responsibility for its own laws.
“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,” wrote Roberts.
Dissent of Justice Breyer, joined by Justice Sotomayor and Justice Kagan
In his dissent, Breyer stated the Texas abortion ban is a violation of a woman’s constitutional rights and “may well threaten the applicants with imminent and serious harm.”
The liberal justice called upon previous Supreme Court rulings including Roe v. Wade and Planned Parenthood v. Casey to remind the court 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.”
“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,” wrote Breyer.
Dissent of Justice Sotomayor, joined by Justice Breyer and Justice Kagan
Sotomayor called the abortion ban “clearly unconstitutional” and criticized the mobilization of residents to enforce the law, calling them, “bounty hunters.”
“No federal appellate court has upheld such a comprehensive prohibition on abortions before viability under current law. To circumvent it, the Legislature took the extraordinary step of enlisting private citizens to do what the State could not,” wrote Sotomayor. “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 criticized the court for its failure to protect the constitutional rights of women.
“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,” she wrote.
Dissent of Justice Kagan, joined by Justice Breyer and Justice Sotomayor
Kagan called the Texas abortion ban “unconstitutional” and in “undisputed” conflict with Supreme Court precedent, including Roe v. Wade.
Kagan criticized the court for “shadow docket decision-making” employing an emergency proceeding that frequently cuts out oral arguments and overrides the normal proceedings to issue a major decision.
“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,” wrote Kagan. “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.”
Maria Elena Little Endara can be reached at email@example.com.