The U.S. Supreme Court yesterday in a 5-4 decision refused to prevent Texas' heartbeat abortion law (S.B. 8) from continuing in effect while its constitutionality is being litigated. The law bans abortions if the physician has detected a fetal heartbeat-- usually at around 6 weeks of a pregnancy. An unusual provision in the law allows it to be enforced only through civil actions by individuals, and not by state officials. The unsigned majority opinion in Whole Woman's Health v. Jackson, (US Sup. Ct., Sept. 1, 2021) states in part:
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. For example ... it is unclear whether the named defendants in this lawsuit can or will seek to enforce the Texas law against the applicants in a manner that might permit our intervention...
[T]his 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.
Chief Justice Roberts filed a dissenting opinion joined by Justices Breyer and Kagan, saying in part:
The statutory scheme before the Court is 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.
The State defendants argue that they cannot be restrained from enforcing their rules because they do not enforce them in the first place. 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....
Justice Breyer, joined by Justices Sotomayor and Kagan filed a dissenting opinion, saying in part:
I recognize that Texas’s law delegates the State’s power to prevent abortions not to one person (such as a district attorney) or to a few persons (such as a group of government officials or private citizens) but to any person. But I do not see why that fact should make a critical legal difference. That delegation still threatens to invade a constitutional right, and the coming into effect of that delegation still threatens imminent harm.
Justice Sotomayor, joined by Justices Breyer and Kagan, filed a dissenting opinion, saying in part:
The Court’s order is 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.
Justice Kagan, joined by Justices Breyer and Sotomayor filed a dissenting opinion, saying in part:
Today’s ruling illustrates just how far the Court’s “shadow-docket” decisions may depart from the usual principles of appellate process.
CNN reports on the decision.
