Supreme Court declines to block Texas abortion law over Sotomayor dissent but grants two challenges

John Fritze
  • The Supreme Court will hear two challenging Texas' ban on abortion after six weeks of pregnancy.
  • Justice Sonia Sotomayor said the court should have temporarily blocked enforcement of the law.

WASHINGTON – The Supreme Court on Friday once again declined to block a Texas ban on abortion after six weeks of pregnancy but the justices agreed to hear two major challenges to the law on an expedited basis.

In a pair of unsigned orders, the court scheduled oral arguments in both for Nov. 1, a breakneck pace that underscored the significance of the cases. But it also declined a request by the Justice Department to temporarily block enforcement of the law, saying it would defer that request until the arguments.  

The Texas law, which bans abortions once cardiac activity is detected in an embryo, has been blocked and upheld in a series of rulings that prompted congressional hearings and thrust abortion and the 1973 Roe v. Wade decision back into the forefront of the nation's culture wars.  

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The Supreme Court has been juggling two lawsuits over the law, including one from the Justice Department filed in September and another by abortion providers. A 5-4 majority of the Supreme Court turned back the providers' challenge in September, allowing the Texas law to remain in effect and prompting a backlash from abortion rights supporters

Sotomayor: 'open disregard' of constitutional rights

While the court agreed to hear the two cases quickly, the moves Friday prompted criticism from Associate Justice Sonia Sotomayor, who asserted that the justices should have blocked the law temporarily while considering the cases. 

"For the second time, the court is presented with an application to enjoin a statute enacted in open disregard of the constitutional rights of women seeking abortion care in Texas," she wrote on Friday. "For the second time, the court declines to act immediately to protect these women from grave and irreparable harm."

Sotomayor wrote alone in her partial dissent.

The cases are focused on questions about who can sue and who may be sued over the Texas ban. They are therefore unlikely to resolve core questions about whether the state's ban on most abortions is constitutional.

The Texas law, signed by Republican Gov. Greg Abbott in May, includes no exception for rape or incest but permits the procedure for "medical emergencies."

Associate Justice Sonia Sotomayor.

Opponents say the law flies in the face of the court's abortion precedents, including the constitutional right to the procedure established by Roe. A 1992 decision in Planned Parenthood v. Casey blocked states from banning abortions before a fetus can survive outside the womb, or at about 24 weeks of pregnancy. Anti-abortion advocates say those decisions were wrongly decided and have sought to undermine – or even convince the high court to overrule – them. 

Those groups may get their wish: With conservatives holding a 6-3 advantage on the Supreme Court for the first time in decades and a blockbuster challenge to a Mississippi ban on most abortions after 15 weeks of pregnancy on the docket, advocates on both sides of the issue have questioned the court's commitment to Roe. 

The Mississippi case is scheduled for oral arguments on Dec. 1  – a month after the high court hears arguments over the Texas ban.

"For nearly two months, we've seen the catastrophic impact of (the law) in Texas and beyond," said Alexis McGill Johnson, president of the Planned Parenthood Federation of America. "Patients who have the means have fled the state, traveling hundreds of miles to access basic care, and those without means have been forced to carry pregnancies against their will."

Amy Hagstrom Miller, chief executive officer of Whole Woman’s Health, one of the providers that filed the suit, said the outcome "forces us to continue to turn our patients away." She described providers in the state as being "hamstrung" by the fact that the law remains in effect but "encouraged" that the court will hear arguments. 

Kimberlyn Schwartz with Texas Right to Life descried the orders as a "great development for the pro-life movement because the law will continue to save an estimated 100 babies per day, and because the justices will actually discuss whether these lawsuits are even valid in the first place."

Laura Echevarria with National Right to Life, said that the "impact of this law has been the lives saved," adding that thousands of "children are alive because of (the Texas law) and we hope that there will many more lives saved as a result.."

Unusual enforcement 

The Supreme Court on Monday, Oct. 18, 2021.

The Supreme Court's earlier decision on the Texas law also dealt not with the underlying questions of constitutionality but with whether federal courts may block enforcement of the ban while lower courts hash out the case. Much of those legal machinations have been the result of the way Texas crafted the law. 

Rather than having the state government enforce the ban, Texas incentivizes private citizens to sue anyone who helps a person get an abortion. That has had the practical effect of discouraging clinics from performing the procedure – out of fear of a lawsuit claiming a violation of the law – but making it harder for abortion rights groups to get an injunction blocking enforcement of the law before such a suit is brought.

U.S. District Judge Robert Pitman, who was nominated by President Barack Obama, temporarily blocked the Texas law on Oct. 6, asserting that the state "deliberately circumvented the traditional process" and "drafted the law with the intent to preclude review by federal courts that have the obligation to safeguard the very rights the statute likely violates." Texas appealed the decision a day later. 

A three-judge panel of the 5th Circuit stayed Pitman's ruling last week, putting the law back into effect.