His dissent was joined by Justices Stephen Breyer and Elena Kagan.
The Supreme Court has been divided on the Texas law since September, when the court, on a 5-4 vote, allowed it to go into effect as legal challenges continued. Patients seeking abortions after that had to travel to other states.
After a hearing in November, the court in December again left the law in place, but provided a narrow avenue for vendors to challenge in federal court what the nation’s most restrictive procedural law is. He identified a handful of state officials who could likely play a role in enforcing SB 8 and said legal action could be pursued against them.
As is common, the Supreme Court remanded the case to the United States Court of Appeals for the 5th Circuit, which covers Texas. But instead of sending it back to a federal judge in Austin who had previously passed the law, the appeals court accepted a request from Texas to ask the state Supreme Court to clarify a matter of law. State: if these identified officials really had such Power application.
That could mean months of delay as the law remains in place.
Abortion providers said such a ruling would be a direct rebuttal of what the Supreme Court said in December.
Eight of the nine judges said litigation could be brought against the officials, and four said they expected the case to come back to the district judge and be dealt with quickly.
“Given the continuing chilling effect of state law, the district court should resolve this litigation and promptly initiate an appropriate remedy,” Chief Justice John Roberts wrote for himself and Breyer, Sotomayor. and Kagan.
Roberts, who has previously voted with the Liberals to stop the law while it is being challenged, did not join Sotomayor’s dissent or that written by Breyer.
“The Court of Appeals ignored our judgment,” Breyer wrote, adding, “As a result, an unconstitutional 6-week abortion ban remains in effect in Texas — as it has for more than four months. “
Sotomayor’s dissent was ruthless. She noted that a judge on the appeals court panel “raised the idea that because this Court is considering a Roe v. Wade challenge, the panel could” simply sit on that issue until the end of June. “rather than fulfilling its obligation to apply precedent.” She was referring to Judge Edith H. Jones, appointed to the 5th Circuit by President Reagan in 1985.
The court heard arguments in a Mississippi case that explicitly asks the court to overturn Roe’s guarantee of a constitutional right to abortion, but Sotomayor noted that the 1973 ruling remains the law.
“Because our precedents are clear that Texas cannot outright ban abortion before viability, the state legislature has enacted a convoluted law that strikes terror into those who help women exercise their rights between 6 and 24 weeks,” she wrote. “State officials knew that the fear and confusion caused by this legal and procedural maze would prevent citizens from accessing constitutionally protected medical care, providers from offering it, and federal courts from restoring it. The delaying tactics that this Court accedes to today are consistent with, and part of, that pattern. »
The abortion providers’ request to court was a long shot; Sotomayor acknowledged that they were asking for “extraordinary” help.
As often happens in emergency petitions, the majority did not provide a reason for denying the petition.
Sotomayor argued that the relief was warranted and that the court should have been clear on Texas and that the appeals court did not obey the Supreme Court’s ruling.
“Texas bet that this Court would not say the little it said in [the December ruling] or, at least, that this Court would not support those words, however meager they are,” Sotomayor wrote. “This bet paid off. Despite this Court’s protests about the “extraordinary solicitude” it has given to this case and the narrowness of any dispute, it accepts yet another delaying tactic from Texas.
