However, Chief Justice John Roberts joined the court’s three liberals in publicly declaring the court erred in refusing to grant the urgency motion to suspend Texan law. In a very unusual step for a case on the so-called shadow file of the court, all four dissenters wrote statements complaining about the court’s decision.
“The court’s order is breathtaking,” wrote Judge Sonia Sotomayor.
“Presented with a motion for a blatantly unconstitutional law to prohibit women from exercising their constitutional rights and evade judicial review, a majority of judges have decided to bury their heads in the sand. … Inaction of the court rewards the tactics designed. ” to avoid judicial review and cause significant harm to applicants and women seeking abortion in Texas. “
Judge Stephen Breyer said the reliance of the new law on individuals, not prosecutors, for enforcement, which would be done through civil actions, should not immunize it from legal proceedings.
“I acknowledge that Texas law does not delegate the power of the state to prevent abortion to one person (such as a prosecutor) or a select few (such as a group of government officials or individuals), but to each person. But I don’t see why that fact should make a critical legal difference, “wrote Breyer.
Judge Elena Kagan devoted much of her disagreement to criticizing the court because it increasingly relies on its emergency records for decisions of major importance to the country, without the benefit of full briefing or oral argument.
“Today’s ruling shows how far the court’s ‘shadow action’ decisions can deviate from standard appeal principles,” Kagan wrote. “The majority decision emulates too much of this court’s shadow-dock decision-making – which is becoming more unfounded, inconsistent and impossible to defend every day.”
Roberts called Texan legislation “not only unusual, but unprecedented”. His disagreements were more cautious than those of the Liberals, but he voiced concerns that the blessing of a plan like that of the Lone Star State could set a model for other states trying to have laws of dubious constitutionality in place for some time.
“The state’s defendants argue that they cannot be prevented from enforcing their rules because they are not enforcing them. I would grant interim legal protection to preserve the status quo ante – before the law comes into effect – so that the courts can examine whether a state can thus evade responsibility for its laws, “wrote Roberts.” The defendants argue, that existing doctrines exclude judicial intervention, and that they are possibly correct … But the consequences of the approval of state action, both in this specific case and as a model approach in other areas, at least advise judicial consideration before that program drawn up by the state comes into force. “
New Texas law prohibits abortions after six weeks of gestation – a point at which many women may not even realize they are pregnant. It is possible that more litigation over the measure may arise in the Supreme Court in the coming weeks or months, but abortions may be difficult or impossible in Texas in the meantime. The judges have already agreed to try a major abortion case during this term: a Mississippi bill banning abortions after 15 weeks of gestation.
The order, issued by the Supreme Court majority, admits that Texas law may be unconstitutional, but the court majority said the abortion providers contesting the law had not reached the high bar required to be in the law remedial action at the early stage of litigation.
“The applicants now before us have raised serious questions about the constitutionality of the controversial Texan law. But their application also raises complex and novel procedural questions that they did not have to bear themselves,” says the decision.
Texas law empowers individuals, not the government, to enforce the ban on abortion and bring lawsuits against health care providers or anyone assisting someone with an abortion. The unique enforcement mechanism makes it difficult for clinics or other potential challengers to assert themselves in court or to find a single target to sue.