Sonia Sotomayor Issues Scathing Dissent After Supreme Court Refuses to Block Texas Abortion Ban

Rolling Stone
Rolling Stone

The Supreme Court ruled on Friday that Texas ’ new ban on abortions after six weeks gestation will stand until the court can hear oral arguments from those challenging it.

Justice Sonia Sotomayor dissented , calling the law “patently unconstitutional” and criticizing the majority for letting the ban stand until the court begins to hear oral arguments against it on Nov. 1. “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. “For the second time, the court declines to act immediately to protect these women from grave and irreparable harm.”

The Biden administration and providers in the state have both sued to overturn the law, which outlaws the procedure after six weeks gestation. The administration has twice asked the court to block it immediately, but the court again refused.

“The Act deputizes ordinary citizens as bounty hunters,” Sotomayor added of the law, which grants private citizens across the U.S. the right to sue anyone they believe “aids or abets” an abortion in Texas or intends to do so. If they are victorious, the plaintiff is entitled to $10,000 in damages plus attorney’s fees and costs. Potential targets for suits include members of the clergy who counsel people who later get abortions or rideshare drivers who unwittingly drove a patient to an abortion clinic. There are no exceptions for cases of rape or incest.

Providers in the state have already stopped performing the procedure after six weeks gestation because they could be bankrupted by suits. Patients who can afford to are now crossing state lines or seeking abortion care online . The state has argued that patients leaving the state to obtain an abortion is a good thing because it is “stimulating” interstate commerce.

Sotomayor wrote that while the court was “right” to schedule arguments for the cases challenging the law, that won’t help women in Texas now. “The promise of future adjudication offers cold comfort, however, for Texas women seeking abortion care, who are entitled to relief now. These women will suffer personal harm from delaying their medical care, and as their pregnancies progress, they may even be unable to obtain abortion care altogether.”

In taking the case, the court said it would consider the question of whether the U.S. government can sue to stop enforcement of the law, but the court declined Texas officials’ request to also consider overturning Roe v. Wade , the 1973 Supreme Court case that granted the right to abortion.

In a brief filed earlier on Friday, acting Solicitor General Brian Fletcher argued that allowing the Texas law to stand would let states ignore other Supreme Court precedents. “If Texas is right, no decision of this court is safe … [States] may simply outlaw the exercise of whatever rights they disfavor; disclaim state enforcement; and delegate to the general public the authority to bring harassing actions threatening ruinous liability.”

An abortion ban in Mississippi that makes the procedure illegal after 15 weeks gestation is scheduled for oral arguments before the court on Dec. 1. Republican states have been passing restrictive bans because they see the appointment of three conservative Trump justices — Brett Kavanaugh, Neil Gorsuch, and Amy Coney Barrett — and the death of Justice Ruth Bader Ginsburg as an opportunity to overturn or chip away at protections granted by rulings like Roe v. Wade and Planned Parenthood v. Casey, which made abortion legal nationwide until fetal viability or approximately 22-24 weeks gestation.

Comments / 16

Rack Attack

While she was yelling furiously her skin began to turn red and little horns started to pop up just above her forehead, a tail was noted growing from her lower spine and hooves began to appear poking out of her shoes.

Robert Howell

Considering that Roe was decided on the basis of the right to privacy, it's not a violation of the constitution to say women don't have the right to murder their unborn children, regardless of the right to privacy.

William Speers

The decision of the Supreme Court is grounded in the conundrum that the Texas abortion expressly prohibits the state and any state official from enforcing the provisions of the law. Instead what the Texas law is empower individuals - not the state or any subdivision of the state - to bring a private action (with a guaranteed minimum $10,000.00 award if successful). The meaning of this is that the enforcement of the statute is done by people other than the state. Therefore, there’s no state/government action that violates the statute. There are earlier cases involving statutes in other areas that the Supreme Court has decided, holding that there is no actionable government action in such instances. That’s one of the meanings of precedent. So the Supreme Court is acting entirely within its powers and responsibilities, in full compliance with long-standing legal principles and entirely free of any ideological taint.


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