WASHINGTON — Less than a day after allowing Texas’s 6-week abortion ban to go into effect Wednesday by simply taking no action the night before, the US Supreme Court issued an order shortly before midnight confirming it wouldn’t halt the law as a legal challenge unfolds in the lower courts.
In a 5–4 order, a majority of the justices held that the ban would remain in place. Justices Stephen Breyer, Sonia Sotomayor, and Elena Kagan dissented, as did Chief Justice John Roberts Jr., breaking with the rest of the court's conservative wing.
The brief, unsigned majority order began by stating that the abortion providers had raised "serious questions" about the constitutionality of Texas's SB 8. However, the justices concluded, the action that they wanted the court to take now to stop the law from going into effect was rooted in "complex and novel" questions about legal procedure — basically, whether the defendants named in the lawsuit could, in fact, be sued — and the challengers had failed to show that they'd definitely win on that.
SB 8, which took effect at midnight Texas time on Wednesday, bans nearly all abortions across the state once a fetal heartbeat can be detected, which usually happens in the 6th week of pregnancy. The Texas law is unusual in that it delegates enforcement to private individuals, allowing them to sue abortion providers for violating the law or anyone else that they believed helped someone get an illegal abortion.
Roberts, in a dissent joined by Breyer and Kagan, agreed with his colleagues that the Texas case involved untested questions. But he wrote that was exactly why they should have waited to let it take effect, noting that the Texas legislature deliberately had structured the law to make private citizens, instead of the state, responsible for enforcing it. That setup made it tricky for the courts to hear, since no one person had tried to enforce the law yet, and there was no single government actor they could block from taking action even if they ultimately found the law unconstitutional.
"I would grant preliminary relief to preserve the status quo ante — before the law went into effect — so that the courts may consider whether a state can avoid responsibility for its laws in such a manner," Roberts wrote.
The Texas legislature created major incentives for filing a lawsuit — winning plaintiffs not only collect a minimum of $10,000 in damages per abortion, but also their legal expenses — and few risks, since doctors and other defendants can’t recoup their attorney fees if a judge ultimately tosses out the case against them.
Courts might ultimately conclude that the abortion providers couldn't go forward with the lawsuit, Roberts wrote, "[b]ut the consequences of approving the state action, both in this particular case and as a model for action in other areas, counsel at least preliminary judicial consideration before the program devised by the State takes effect."
Breyer, Kagan, and Sotomayor also each wrote their own dissents, going further than Roberts to declare that Texas's law flew in the faces of decades of precedent that had established the constitutional right to an abortion, and particularly during the early stage of pregnancy.
Breyer — who has spent the past year fending off calls from the left to step aside and let President Joe Biden appoint a successor while he has a Democratic majority in the Senate — wrote that it was true that the lawsuit raised difficult threshold questions about how this type of case could be handled by the courts. But he wrote that there had to be a way for courts to deal with an imminent violation of a party's legal rights.
"There may be other not-very-new procedural bottles that can also adequately hold what is, in essence, very old and very important legal wine: The ability to ask the Judiciary to protect an individual from the invasion of a constitutional right — an invasion that threatens immediate and serious injury," Breyer wrote.
Sotomayor blasted her colleagues in the majority, writing that it was "untenable" that a state could manage to avoid a constitutional challenge to a law by simply "outsourcing" it to private citizens. She wrote that SB 8 represented a "breathtaking act of defiance" of the Constitution, Supreme Court precedent, and women's rights.
"Presented with an application to enjoin a flagrantly unconstitutional law engineered to prohibit women from exercising their constitutional rights and evade judicial scrutiny, a majority of Justices have opted to bury their heads in the sand," she wrote.
Kagan, writing last, took aim at the court's practice of using what's known as the "shadow docket" to make hugely consequential decisions on an emergency basis, without any arguments or full briefing. By allowing SB 8 to take effect, even without a full opinion, the court had taken a side on an issue that a federal appeals court hadn't even ruled on yet, she noted.
"The Court thus rewards Texas’s scheme to insulate its law from judicial review," Kagan wrote.
Abortion providers in the state, including Whole Woman's Health and Planned Parenthood, immediately announced on Wednesday morning that they were complying with the law after scrambling the day before to see as many patients as possible who might be affected once the law took effect. Providers have estimated that abortions after the 6-week mark make up roughly 85% to 90% of the procedures they perform.
The Supreme Court was already poised to consider a major abortion case in its next term, which begins in October. That case involves a Mississippi law that bans abortions after 15 weeks of pregnancy, one of a series of laws that Republican-led state legislatures have tried to enact in recent years banning abortions before a fetus is viable, meaning it can survive outside of the womb. Judges repeatedly struck these laws down, citing decades of Supreme Court precedent that’s been interpreted to protect the right to an abortion before the viability point, which is usually around 24 weeks.
But the Texas case suddenly rocketed up to the justices this week after a series of swift developments in the lower court legal fight over SB 8. Abortion providers had asked a federal district judge in Austin to issue an order temporarily blocking enforcement of the law while their lawsuit went forward. As the judge prepared to hear arguments over that on Aug. 30, he also denied a round of motions filed by the defendants to dismiss the case.
The defendants immediately challenged that ruling in the US Court of Appeals for the 5th Circuit, which halted all of the lower court proceedings, including the imminent Aug. 30 hearing. The appeals court denied requests by the abortion providers to either stop SB 8 from taking effect in the meantime or at least expedite the proceedings before the appeals court.
The abortion providers then filed an emergency action on Aug. 30 asking the Supreme Court to intervene, asking the justices to consider temporarily blocking the law or at least lifting the 5th Circuit order that prevented the judge in Austin from ruling on whether to grant an injunction. The justices had signaled they might issue some sort of decision before the Sept. 1 start date. Justice Samuel Alito Jr., who handles emergency matters that come out of the 5th Circuit, ordered the Texas defendants to file a response by 5 p.m. on Aug. 31, an abnormally fast schedule that the court only adopts for time-sensitive issues.
But midnight in Texas came and went, and there was no order from the court. In the hours and, in some cases, minutes before the law took effect, abortion providers raced to serve patients; Amy Hagstrom Miller, CEO of Whole Woman’s Health, which operates four clinics in Texas, told reporters that they performed their final abortion procedure at 11:56 p.m. Tuesday.
Clinics that perform abortions can continue to operate and provide abortions before the 6-week mark, but advocates underscored that those procedures make up a small fraction of the work they normally do. Patients who could now no longer legally obtain an abortion in the state were left in limbo and faced with limited options: make arrangements to travel out of state — an option that can be simply out of reach because of the cost and time involved — or wait to see if the Supreme Court or other judges might still halt the law.
The Supreme Court’s order doesn’t end the constitutional fight over SB 8 in the lower courts. The case now will go back to the 5th Circuit to resolve some of the threshold issues that the Texas defendants had raised in opposing the lawsuit. Depending on what those judges decide, it could still go back to the federal district judge in Austin to resume handling the case on its normal trajectory or make its way up to the Supreme Court again.