(Blistering Dissents by Kagan & Sotomayor)
September 2, 2021
Quoting Axios on September 2, 2021: “The Supreme Court voted 5-4 to leave the Texas ban on most abortions in place, with Chief Justice John Roberts joining the three liberal judges in the dissent.
Why it matters: The Texas law is the most restrictive abortion ban allowed to be enforced since the 1973 Roe v. Wade decision enshrined abortion as a constitutional right. The Supreme Court decision will likely prompt other states to pass similar laws, reproductive rights groups say.
Catch up quick: The Texas law bans all abortions, including in cases of rape and incest, after the detection of a fetal heartbeat, which is usually around six weeks —before many people know they are pregnant.
- It also allows individuals to sue anyone suspected of helping a woman obtain an abortion — and awards at least $10,000 to people who do so successfully.
- The law is difficult to challenge partly because it’s unclear who can be sued since it deputizes private citizens to enforce it.
What they’re saying:
Roberts in his dissent calls the “statutory scheme” of the law “not only unusual, but unprecedented.”
- “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,” he continues in a dissent joined by Justices Stephen Breyer and Elena Kagan.
- “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,” he adds.
- “[T]he 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.”
- “We are also asked to do so without ordinary merits briefing and without oral argument. These questions are particularly difficult.”
Justice Sonia Sotomayor in her dissent calls the majority’s decision “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,” she continues in a dissent joined by Justices Breyer and Kagan.
- “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,” she writes, adding the law “is clearly unconstitutional under existing precedents.”
- “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.”
- “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.”
- “Today, the Court finally tells the Nation that it declined to act because, in short, the State’s gambit worked. … It cannot be the case that a State can evade federal judicial scrutiny by outsourcing the enforcement of unconstitutional laws to its citizenry.”
- Of note: Justices Kagan and Breyer also wrote separate opinions.
The other side: In a brief, unsigned order, the majority — Justices Clarence Thomas, Samuel Alito Jr., Neil Gorsuch, Brett Kavanaugh and Amy Coney Barrett — say that while they are denying the application for injunctive relief, the decision is not an indication of whether they believe the law is constitutional or not.
- “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,” the opinion reads.
- “In reaching this conclusion, we stress that we do not purport to resolve definitively any jurisdictional or substantive claim in the applicants’ lawsuit,” it adds.
- “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.””
Read the order “Whole Women’s Health v. Austin Reeve (Supreme Court) (9.1.21)” in the scrollable reader below or click on the link below that for a larger view. Click the “Download” button to download the file to your device.