Legal journalist sounds the alarm after the Supreme Court's latest ruling on the Texas abortion ban

Legal journalist sounds the alarm after the Supreme Court's latest ruling on the Texas abortion ban
The U.S. Supreme Court in 2021, Wikimedia Commons

Abortion rights defenders have not had much reason for optimism where the U.S. Supreme Court is concerned. Oral arguments that have been made in Dobbs v. Jackson Women's Health Organization — which examines the constitutionality of a restrictive abortion law in Mississippi — indicate that the High Court’s right-wing majority is likely to overturn Roe v. Wade. And so far, the Court has allowed a draconian abortion ban in Texas to stand.

Journalist Mark Joseph Stern, this week in an article for Slate, warns that if the Court’s right-wing justices are willing to let the Texas law continue, other attacks on civil liberties at the state level are likely to follow.

On Friday, the Supreme Court ruled that health care providers can continue their lawsuit against Texas Senate Bill 8, the abortion law, but also ruled that the law can remain in effect. And the court dismissed U.S. Attorney General Merrick Garland’s challenge to SB 8.

Stern explains, “The upshot of Friday’s decisions is this: Abortion providers can now ask U.S. District Judge Robert Pitman to block SB 8. Pitman will swiftly grant their request by issuing an injunction against ‘executive licensing officials’ tasked with enforcing the law, a decision that should stand in the 5th U.S. Circuit Court of Appeals. Texas’ clinics will presumably begin providing abortions again, though they are not fully protected from civil suits.”

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Under SB 8, no abortions can be legally performed in Texas more than six weeks into a pregnancy — even if that pregnancy resulted from rape. Many women who become pregnant don’t find out that they are pregnant that soon into a pregnancy, which in effect, makes the law almost a total ban on abortion in Texas. And the law allows lawsuits against anyone who “abets” an illegal abortion in Texas, meaning that even a cab driver or Uber driver who drives a pregnant woman to a clinic may be vulnerable to financial ruin.

“In the meantime,” Stern notes, “all parties will await the Supreme Court’s decision in Dobbs v. Jackson Women’s Health Organization, due by June, which may overturn Roe v. Wade and permit Texas to implement a more straightforward abortion ban. And other states may still pass SB 8-style laws that empower vigilantes to sue abortion providers, as long as they tweak the language to comply with Friday’s decision.”

Although Democrats have won the popular vote in seven of the United States’ last eight presidential elections, the U.S. Supreme Court presently has six justices who were appointed by Republican presidents and three who were appointed by Democratic presidents — one of whom is Justice Sonia Sotomayor, appointed by President Barack Obama. Sotomayor, as Stern points out, is vehemently critical of the Court’s conservatives for allowing the SB 8 to continue.

The court, Sotomayor complained on Friday, should have “put an end to this madness months ago, before SB 8 first went into effect.”

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Sotomayor argued, “My disagreement with the Court runs far deeper than a quibble over how many defendants these petitioners may sue. The dispute is over whether States may nullify federal constitutional rights by employing schemes like the one at hand. The Court indicates that they can, so long as they write their laws to more thoroughly disclaim all enforcement by state officials, including licensing officials. This choice to shrink from Texas’ challenge to federal supremacy will have far-reaching repercussions. I doubt the Court, let alone the country, is prepared for them.”

The Supreme Court’s response to SB 8, according to Sotomayor, “leaves all manner of constitutional rights more vulnerable than ever before, to the great detriment of our Constitution and our Republic.”

Stern points out that if the Supreme Court overturns Roe v. Wade in the Dobbs case, Texas will be free to go beyond the draconian SB 8 and ban all abortions in the state under any circumstances.

“In the end, this whole episode may be a sideshow, since the Court seems poised to overturn Roe outright by the end of the term,” Stern notes. “But Friday’s decision has alarming ramifications for the principle that states may not undermine fundamental rights by outsourcing enforcement to bounty hunters. There is nothing in the ruling to stop Republican legislators from deploying a refined version of Texas’ strategy. To the contrary, these legislators now have a blueprint for keeping their unconstitutional laws out of federal court indefinitely. The majority has disabled a time bomb — then given Texas instructions on which wires to reconnect.”

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