Last week marked the first ripples of an incoming wave of Supreme Court decisions concerning a number of abortion cases, as the high court issued its first thoughts on a controversial six-week abortion ban passed into law in Texas earlier this year.
According to the Washington Examiner, in a surprising 8–1 ruling, the high court ruled last week that while abortion providers can sue over the new abortion ban — one of the strictest in the country — the ban will not be halted in the meantime.
It was noted in the ruling, which was authored by Justice Neil Gorsuch, that the decision, which came over a month after SCOTUS heard opening arguments on the Texas law, was not based on the merits — or the constitutionality — of the actual Texas law.
“In this preliminary posture, the ultimate merits question, whether S. B. 8 is consistent with the Federal Constitution, is not before the Court. Nor is the wisdom of S.B. 8 as a matter of public policy,” the SCOTUS ruling said.
Justice Roberts’ view
Chief Justice John Roberts wrote a concurring opinion on the ruling, which was signed by the high court’s three liberal justices. In it, he made clear that he has a problem with Texas’ wording of the law as it relates to how federal courts can approach lawsuits on the matter.
“These provisions, among others, effectively chill the provision of abortions in Texas,” Roberts wrote.
He added: “Texas says that the law also blocks any pre-enforcement judicial review in federal court. On that latter contention, Texas is wrong.”
In other words, SCOTUS seemed to keep both sides happy to some degree, as there are now legal avenues at the federal court level for abortion providers to seek action, but at the same time, the abortion ban is still in place.
However, the idea of keeping the law in place while it’s litigated further did not sit well with Justice Sonia Sotomayor, who issued a dissent on the ruling. “The [Supreme] Court should have put an end to this madness months ago,” Sotomayor wrote. “It failed to do so then, and it fails again today.”
The crux of the criticism aimed at the law, aside from the fact that it bans abortions after six weeks, is the unique enforcement mechanism that allows Texas citizens to file lawsuits to enforce it.
Just a day before the SCOTUS ruling, District Judge David Peeples of Travis County, Texas expressed his concerns with such an unconventional mechanism.
“SB 8 grants to 21 million Texans the power to bring cases without any guidance, supervision, or screening,” the judge wrote.