Yesterday, in In re Whole Woman's Health, (Sup.Ct., Jan. 20, 2022), the U.S. Supreme Court in a brief Order refused to issue a writ of mandamus requested by Texas abortion providers who are seeking a speedy adjudication of the constitutionality of Texas SB8, the state's "heartbeat" abortion law that essentially bans almost all abortions after six weeks of pregnancy. Courts, including the Supreme Court, have refused to enjoin enforcement of the Texas law while its constitutionality is being litigated. Earlier this week, the 5th Circuit assured further delay by certifying a state law issue in the case to the Texas Supreme Court instead of remanding the case to the Texas federal district court for it to act on the constitutional question. (See prior posting.) Yesterday, Justice Breyer filed a dissenting opinion that was joined by Justices Sotomayor and Kagan, and Justice Sotomayor filed a dissenting opinion joined by Justices Breyer and Kagan, objecting to the Court's denial of mandamus. Justice Sotomayor said in part:
Today’s decision shows that any hope that Whole Woman’s Health II might protect the Constitution’s guarantees in this case was illusory. As it turns out, Texas did not even have to amend its law to sidestep the minimal relief this Court left available. Instead, Texas wagered that this Court did not mean what little it said in Whole Woman’s Health II or, at least, that this Court would not stand behind those words, meager as they were. That bet has paid off.... [This Court] accepts yet another dilatory tactic by Texas....
This case is a disaster for the rule of law and a grave disservice to women in Texas, who have a right to control their own bodies. I will not stand by silently as a State continues to nullify this constitutional guarantee.
Texas Tribune reports on the decision.
