Emergency Record

Nearly 24 hours after a Texas law banning almost all abortions in the state went into effect, the Supreme Court confirmed on Wednesday what it had previously only implied by failing to take action the night before: Court Refused Asked to prevent the implementation of the law, abortion providers stated that the law would prohibit at least 85% of abortions in the state and could result in the closure of many clinics, while questions about its constitutionality would be sued in a lower court. The vote was 5 to 4, and Chief Justice John Roberts and the three liberal justices of the court — Stephen Breyer, Sonia Sotomayor, and Elena Kagan — disagreed.

case, The whole woman’s health v. Jackson, Came to court urgently on Monday, and a group of abortion providers asked the judge to intervene. This is the first major test of the right to abortion by the Roberts Court since the death of Judge Ruth Bader Ginsburg in September 2020, and conservative judge Amy Coney Barrett (Amy Coney Barrett) replacing Ginsburg may have The result is decisive.

court Inaction The Texas law was allowed to take effect on Tuesday night, and the brief order on Wednesday night to deny any relief to abortion providers undoubtedly represented a victory for the abortion enemy, but the five justices emphasized (Roberts reiterated in his dissent) the court The constitutionality of the law is not recognized. The ruling also revealed a severely divided court, not only on the merits of the case, but also on the procedures used by the court to resolve such urgent appeals.

The law is called SB 8, Is one of several so-called “heartbeat bills” promulgated by the Republican legislature nationwide as part of an effort to overthrow Rowe v. Wade with Family Planning v. Casey, Where the Supreme Court held that the constitution protects the right to abortion before the fetus survives outside the womb. This benchmark, known as survivability, occurs around 24 weeks of pregnancy, but SB 8 prohibits abortion after about 6 weeks of pregnancy-this time is calculated from the first day of a woman’s last menstrual period, and many people realize that they are Before pregnancy. To make it more difficult to challenge the law in court, especially before the law goes into effect, Texas law does not rely on government officials to enforce the injunction. Instead, it commissioned private individuals to sue anyone who offered or “helped or abetted” an abortion, and established a $10,000 reward for successful litigation.

An abortion provider in Texas went to federal court in July to try to stop it before its effective date on September 1. They argued (among other things) that the law violated the patient’s constitutional right to terminate the pregnancy before surviving. When the district court rejected the defendant’s motion to dismiss the case on August 25, things moved quickly. The defendants went to the U.S. Court of Appeals for the Fifth Circuit, which approved their request to suspend the remaining district court proceedings, including the August 30 hearing on abortion providers requesting a preliminary injunction.The appeal court also rejected the abortion provider’s request to expedite the defendant’s appeal, prompting the provider to Seek emergency relief At the Supreme Court on Monday afternoon.

in a Single paragraph, unsigned order Released before midnight on Wednesday, the court acknowledged that the supplier “raised serious questions about the constitutionality of Texas law.” But this is not enough to prevent the law from taking effect, the court explained, because of the way the law works. Specifically, the court observed that it is unclear whether state officials—judges and court clerks—and anti-abortion activists designated as defendants by abortion providers “can or will seek to enforce Texas law against the providers. “In a way that allows the court to intervene in the dispute at this stage.

in his objectionRoberts, who joined Breyer and Kagan, described the Texas plan as “unprecedented.”Roberts emphasized that by entrusting ordinary citizens to enforce the law, the law “isolates[s] State exemption. He wrote that because of the novelty and importance of this issue, he would prevent the law from taking effect to maintain the status quo and allow the court to consider “whether a country can evade its legal responsibility in this way.”

Breyer wrote his objectionKagan and Sotomayor also joined this point. He acknowledged the procedural challenges brought about by Texas law, but when there was a dispute about “infringement of constitutional rights”, he was concerned about “why this fact is critical. “Legal differences” expressed suspicion.

Sotomayor, joined by Breyer and Kagan, described the court order As “amazing”. “When applying for a ban on a blatantly unconstitutional law designed to prohibit women from exercising their constitutional rights and evading judicial review,” she wrote, “most justices chose to bury their heads in the sand.”

Breyer and Sotomayor also pointed out that on the first day of the entry into force in Texas, clinics in the state began to reject most or all abortions.

Kagan’s objectionTogether with Breyer and Sotomayor, the main focus is on the process of the court’s ruling on Wednesday night. She complained, “[w]In the absence of a complete briefing or debate, and after less than 72 hours of thinking, this court approved the implementation of Texas’s apparently unconstitutional law prohibiting most abortions. She concluded that the result “symbolizes the excessive shadow file decisions of the courts-every day they become more unreasonable, inconsistent and unable to be defended.” “

The Texas case will now return to the lower courts, and the litigation will continue.At the same time, the judges have agreed to weigh the challenge to the constitutionality of Mississippi’s law, which would prohibit most abortions after the 15th week of pregnancy; they may hear oral arguments That situation In December, and decided to follow up sometime next year.In this case, Mississippi and its supporters urged the court to formally overturn roe with Casey.

This article is Originally published in Howe on the Court.