Justice Sonia Sotomayor issued a blistering dissent on Thursday after the Supreme Court rejected the latest request from Texas abortion providers to intervene in their challenge against the most restrictive abortion law in the nation, which bans the procedure after about six weeks of pregnancy with narrow exceptions.
“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,” Sotomayor wrote. “I will not stand by silently as a state continues to nullify this constitutional guarantee.”
Sotomayor was joined in her dissent by Justice Stephen Breyer and Justice Elena Kagan. Both Sotomayor and Kagan also joined in the dissent written by Breyer.
The majority did not provide a reasoning for its ruling on the order, only issuing in one sentence that the attempt of providers to return the case to a federal district court, where a judge had previously blocked the law, was denied. The case has illustrated deep divides among those on the high court, with the three dissenting liberal justices writing that the order would result in an “unconstitutional chill on abortion care, likely for months to come.”
The law was designed to deputize private individuals rather than state officials to enforce it, allowing them to bring a lawsuit against anyone who “aids and abets” an abortion, including doctors and staff members of a clinic. It has been in effect in Texas since September.
“It has been over four months since Texas Senate Bill 8 took effect,” Sotomayor wrote in her dissent Thursday. “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.”
The case now stands before the Fifth Circuit Court of Appeals, which earlier this week sent it back to the Texas Supreme Court, a move that is likely to add weeks or months to the legal proceedings. Justices left the law in place in December but provided a narrow path for providers to challenge in federal court the Texas Medical Board and other licensing authorities.
“After this court issued its judgment, however, the litigation stalled. The Fifth Circuit should have immediately remanded this case to the district court, allowing it to consider whether to issue preliminary relief,” Sotomayor wrote.
But instead of the case being returned to a federal judge who had previously halted the law, the Fifth Circuit instead sided with Texas and sent it back to the state Supreme Court to question what the Supreme Court “had just decided: whether state licensing officials had authority under state law to enforce” it, Sotomayor wrote.
“By blessing this tactic,” she wrote, “the panel ignored this court’s clear message that this case should proceed — and proceed expeditiously.”
The ruling by the US Supreme Court means that the case is not likely to be settled soon and that any form of relief against the abortion ban is prevented for the time being.
“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,” Sotomayor wrote.
Sotomayor was unflinching in her dissent of the order and noted how one judge on the appeals court in particular “raised the notion that because this court is considering a challenge to Roe v. Wade ... the panel could ‘just sit on this until the end of June’ rather than fulfill its obligation to apply existing precedent.”
The high court has heard oral arguments on the most consequential challenge to abortion rights in the United States in decades in a Mississippi case, although the 1973 ruling still remains the law, Sotomayor wrote.
“Because our precedents are clear that Texas cannot directly ban abortion before viability, the state legislature enacted a convoluted law that instills terror in those who assist women exercising their rights between 6 and 24 weeks,” she wrote. “State officials knew that the fear and confusion caused by this legal-procedural labyrinth would restrict citizens from accessing constitutionally protected medical care, providers from offering it, and federal courts from restoring it.”