The more conservative members of the Supreme Court upheld a Texas law banning abortions after about six weeks. But the court made its decision without having been informed and argued before any court.
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The conservative majority on the Supreme Court dropped a legal bombshell into the abortion debate last night. In a 5-4 vote, the justices upheld, for now, a Texas law banning abortions after about six weeks. And they made this decision without a full briefing or arguments in court. Nina Totenberg, NPR’s legal affairs correspondent, reports.
NINA TOTENBERG, BYLINE: The majority of the court, including the three Trump appointees, stressed that they were not ruling on the issues presented in the case. Yet he refused to prevent the law from coming into force on procedural grounds. The unsigned court order was only one long paragraph. Chief Justice John Roberts, who disagrees with all major decisions expanding abortion rights, disagreed this time. He called the Texas law unprecedented because it not only banned abortions after about six weeks, but delegated enforcement powers to the general population.
For nearly half a century, from Roe c. Wade, the Supreme Court has always upheld the right to terminate a pregnancy before the fetus can survive outside the womb, usually 22 to 24 weeks. The court’s majority decision to leave the Texas law in place drew widespread criticism because the law was written to prevent review by the courts. Instead of placing enforcement in the hands of state agents, the law delegates to any individual the right to sue a clinic or anyone who aids or abets an abortion after six weeks for damages. Villanova University’s Michael Moreland, who identifies as a pro-life law professor, notes that the law is not just bizarre in its words, but broad.
MICHAEL MORELAND: There are all kinds of uncertainties in that status. At one point there is even a provision that you can file a complaint if you know that someone intends to have an abortion or to aid or abet an abortion.
TOTENBERG: Indeed, anti-abortion groups already ask on their websites for guidance on those who aid or abet abortion in violation of state law. How far the language of the law may go remains unclear, but it could possibly include family members or a receptionist at a clinic or someone who drives a patient to a clinic, or even possibly a doctor at the hospital. outside the state who, through telemedicine, prescribes abortion. pills. Cornell law professor Michael Dorf observes that the law’s public enforcement provision could have nasty consequences.
MICHAEL DORF: The creation of a kind of Stasi or, you know, an East German-type society in which everyone informs about everyone.
TOTENBERG: And it all comes against the backdrop of a much more traditional attack on court abortion precedents — a showdown with a new conservative supermajority on the Supreme Court this year. Within the next two months, the court is due to hear a direct challenge to Roe v. Wade in a case testing the constitutionality of a Mississippi law banning abortions after 15 weeks. This law, like dozens of other similar laws restricting the right to abortion, was blocked by the courts because it violated Roe and other Supreme Court precedents and because, unlike Texas law , the state enforcement regime was enforced by state officials. Stephen Vladeck, a law professor at the University of Texas, argues that by leaving Texas law in place, the Supreme Court majority is rewarding cynicism.
STEPHEN VLADECK: It rewards states not just by thumbing their noses at the Supreme Court on the merits, but by using procedural tricks to prevent the Supreme Court from actually getting to the unconstitutional substance of what the state is doing.
TOTENBERG: Stay tuned because the stakes this year are getting higher and higher.
Nina Totenberg, NPR News, Washington.
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