Supreme Court declines to block Texas abortion law

Source: Politico | September 2, 2021 | Josh Gerstein

Justices split, 5-4, as Chief Justice John Roberts joins the court’s liberals in dissent.

A sharply and bitterly divided U.S. Supreme Court has declined to block a novel Texas law that opponents say could effectively outlaw abortion in the state.

In an order and opinions issued just before midnight Wednesday, the justices revealed that they split 5-4 in refusing the request from abortion rights advocates to put the Texas law — which went into force early Wednesday — on hold while litigation over the measure proceeds.

The court’s majority said in an unsigned order that procedural issues related to the unusual private enforcement mechanism the law sets up undermined the argument for blocking the statute at this preliminary stage.

However, Chief Justice John Roberts joined the court’s three liberals in publicly declaring that the court was erring by refusing to grant the emergency motion to stay the Texas law. In a highly unusual move for a case on the court’s so-called shadow docket, all four dissenters authored opinions that lamented the court’s decision.

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The new Texas law bans abortions after six weeks of pregnancy — a point at which many women may not even realize they are pregnant. It’s possible other legal fights over the measure could return to the high court in the coming weeks or months, but abortions may be hard or impossible to obtain in Texas in the meantime. The justices have already agreed to hear one major abortion case this term: a case over a Mississippi law that seeks to ban abortion after 15 weeks of pregnancy.

The order issued by the Supreme Court’s majority does concede that the Texas law may be unconstitutional, but the court’s majority said the abortion providers challenging the statute had not met the high bar needed to get relief in the early stages of a lawsuit.

“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 order said.

The Texas statute empowers private citizens, rather than the government, to enforce the ban on abortion and bring lawsuits against health providers or anyone who assists someone in obtaining an abortion. The unique enforcement mechanism makes it harder for clinics or other potential challengers to establish standing in court, or find a single target to sue.

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