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Supreme Court denies abortion providers’ request to return Texas law to US judge

The US Supreme Court in Washington, Dec. 13, 2021.STEFANI REYNOLDS/NYT

The Supreme Court denied a request from abortion providers Thursday to send Texas’s restrictive abortion law back to a district judge who had once stopped it, and dissenting liberal justices said the court was complicit in allowing an “unconstitutional chill on abortion care.”

The court’s one-sentence order denying the request was the latest legal maneuver on the law called S.B. 8, which bans abortions in the state at about six weeks of pregnancy and sets up an enforcement for private individuals, rather than state officials. It has bitterly divided the Supreme Court.

“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,” wrote Justice Sonia Sotomayor. “I will not stand by silently as a state continues to nullify this constitutional guarantee.”

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Her dissent was joined by Justices Stephen Breyer and Elena Kagan.

The Supreme Court has been split over the Texas law since September, when the court on a 5-to-4 vote allowed it to go into effect while legal challenges continued. Patients seeking abortions after that have had to travel to other states.

After a hearing in November, the court in December again left the law in place but provided a narrow path for providers to challenge in federal court what is the nation’s most restrictive law on the procedure. It identified a handful of state officials who could presumably play a role in enforcing S.B. 8 and said a suit could properly proceed against them.

As is common, the Supreme Court sent the case back to the US Court of Appeals for the 5th Circuit, which covers Texas. But instead of returning it to a federal judge in Austin who had previously stopped the law, the appeals court agreed with a request from Texas to ask the state supreme court to clarify a matter of state law: whether those identified officials really had such an enforcement power.

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That could mean months of delay, with the law remaining in place.

Abortion providers said such a move would be a direct rebuttal of what the Supreme Court had said in December.

Eight of the nine justices said litigation could proceed against the officials, and four said they expected the case to go back to the district judge and be dealt with quickly.

“Given the ongoing chilling effect of the state law, the district court should resolve this litigation and enter appropriate relief without delay,” Chief Justice John Roberts wrote for himself and Breyer, Sotomayor, and Kagan.

Roberts, who has voted with the liberals previously to stop the law while it is being challenged, did not join Sotomayor’s dissent or one written by Breyer.

“The Court of Appeals ignored our judgment,” Breyer wrote, adding, “As a result, an unconstitutional 6-week abortion ban remains in effect in Texas — as it has for over four months.”

Sotomayor’s dissent was unsparing. She noted that one judge on the appeals court panel “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.” She was referring to Judge Edith H. Jones, appointed to the 5th Circuit by President Reagan in 1985.

The court has heard arguments in a Mississippi case that explicitly asks the court to overturn Roe’s guarantee of a constitutional right to abortion, but Sotomayor noted the 1973 decision remains the law.

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“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. The dilatory tactics to which this Court accedes today are consistent with, and part of, this scheme.”

The abortion providers’ request to the court was a long shot; Sotomayor acknowledged they were asking for “extraordinary” relief.

As often happens in emergency requests, the majority did not provide a reason for denying the petition.

Sotomayor contended the relief was warranted, and the court should have been clear Texas and the appeals court had not obeyed the Supreme Court’s decision.

“Texas wagered that this Court did not mean what little it said in [the December ruling] or, at least, that this Court would not stand behind those words, meager as they were,” Sotomayor wrote. “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.”