Supreme Court rules against blocking Texas’ 6-week abortion ban

by Carol Zimmermann

Catholic News Service

9/1/2021

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A Planned Parenthood exam room is seen in this illustration photo. The Supreme Court took no action Aug. 31, 2021 to block a Texas bill that prohibits most abortions after six weeks of pregnancy. (CNS photo/Liliana Engelbrecht, Reuters)


Editor's Note: This article was updated with NTC staff reporting.

WASHINGTON (CNS) — In a late-night decision Sept. 1, the Supreme Court ruled against blocking a Texas law banning abortions at six weeks of pregnancy.

The 5-4 vote, issued with a one-paragraph unsigned opinion, said the challengers to the Texas law — which went into effect Sept. 1 — did not adequately address the “complex and novel antecedent procedural questions” in this case.

“This order is not based on any conclusion about the constitutionality of Texas’ law, and in no way limits other procedurally proper challenges to the Texas law, including in Texas state courts,” the opinion said, leaving open the possibility that the state’s abortion providers could challenge it in other ways.

The Texas abortion providers had come to the Supreme Court with an emergency appeal to stop the law, but the court initially did not respond.

Chief Justice John Roberts joined Justices Sonia Sotomayor, Elena Kagan, and Stephen Breyer in dissenting votes and each of them wrote separate statements expressing their disagreement with the majority.

A key part of the law that the dissenting justices took issue with is its emphasis on private citizens bringing civil lawsuits in state court against anyone involved in an abortion, other than the patient, but including someone who drives the patient to a clinic.

Sotomayor said the majority opinion in this case was “stunning.” She said that when the court examined 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.”

Kagan similarly called the Texas law “patently unconstitutional,” for its emphasis on encouraging “private parties to carry out unconstitutional restrictions on the State’s behalf.”

Roberts said the “statutory scheme” involving citizens’ enforcement of the law “is not only unusual, but unprecedented.”

“The legislature has imposed a prohibition on abortions after roughly six weeks, and then essentially delegated enforcement of that prohibition to the populace at large. The desired consequence appears to be to insulate the state from responsibility for implementing and enforcing the regulatory regime.”

He also noted that the case is not shut, saying that although the court denied the emergency relief sought by the applicants, its order is “emphatic in making clear that it cannot be understood as sustaining the constitutionality of the law at issue.”

In a statement just after the court’s decision, Nancy Northup, president and CEO of the Center for Reproductive Rights, which represents abortion providers challenging the Texas law, said these challengers would keep fighting.

“We are devastated that the Supreme Court has refused to block a law that blatantly violates Roe v. Wade,” she added.

The law, signed by Republican Gov. Greg Abbott in May, became effective at midnight central time Sept. 1. It is one of the strictest abortion measures in the country, banning abortions in the state after a fetal heartbeat is detectable. The law has an exception for medical emergencies but not for rape or incest.

The night before this took effect, court watchers on both sides of the issue kept vigil at the Supreme Court waiting for an order that never came. Abortion providers in the state had argued that the law would prevent about 85 percent of abortions in the state and will likely cause many clinics to close.

Currently, at least 12 other states have legislation banning abortions early in pregnancy, but these bans have been blocked by courts.

Dr. Robin Pierucci, chair of the American College of Pediatricians Pro-Life Committee said, “Texas' recognition that the baby in the womb is in fact a real person is something to genuinely celebrate. It is, however, just one step in our desire to assist and support the entire mother-infant dyad.”

Dr. Joe Pojman, executive director of Texas Alliance for Life also applauded the law going into effect.

“We celebrate the lives of unborn children who will be protected from abortion as a result. Hundreds of pregnancy centers and maternity homes throughout Texas are expanding their capacity and resources to meet the needs of women facing unplanned pregnancies who may seek their support. Also, the State of Texas has increased funding for the highly successful Alternatives to Abortion program to $100 million for the biennium to provide services to 150,000 clients per year,” Pojman said.

Two months after the law was signed, abortion providers challenged it in court, saying it violated patients’ constitutional right to end a pregnancy before viability, when a fetus is said to be able to survive on its own.

The Supreme Court has consistently ruled that states cannot restrict abortion before the 24-week mark. This fall, the court will take up a Mississippi abortion ban after 15 weeks of pregnancy.

Those appealing the state law filed a motion in late August that was denied by the district court. They turned to the U.S. Court of Appeals for the 5th Circuit, which granted their request to put the district-court proceedings on hold but denied the challengers’ request to expedite the appeal, which led them to seek emergency relief from the Supreme Court Aug. 30.

Scotusblog, which reports on the Supreme Court, said the Texas attorney general and other defenders of the state’s abortion law had urged the Supreme Court to stay out of the dispute, saying the court is limited in its power to grant relief before laws have actually been enforced. They argued that courts can bar people from doing something, but they have no power to “expunge the law itself.”

In late March, the Texas Catholic Conference of Bishops, the public policy arm of the state’s bishops, said it was “thrilled to report” Senate passage of pro-life bills supported by the conference and said they were considered top priorities.

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WASHINGTON (CNS) — A Texas bill banning abortions after about six weeks of pregnancy became law Sept. 1 when the U.S. Supreme Court did not act on an emergency request to put the law on hold.

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