Justice Sonia Sotomayor’s Furious Dissent To “Stunning” Decision Upholding Texas’ Abortion Ban Is a Must-Read
Texas’ extreme six-week abortion ban went into effect yesterday thanks to the total silence coming out of the Supreme Court. The court had been expected to block the ban, given that a pre-viability (the point when a fetus can survive outside of the uterus, around 24 to 28 weeks) abortion ban is a direct violation of Roe v. Wade. But instead, we got crickets.
Just about six hours until the Texas 6 week abortion ban takes effect and still no word from SCOTUS.
Patients and providers deserve better than this. It’s devastating.
— Jessica Mason Pieklo (@Hegemommy) August 31, 2021
Today, the court finally weighed in, announcing that in a 5-4 vote held without a single hearing, it had decided it would not be blocking the Texas law. Justice Sonia Sotomayor wrote a furious dissent, calling the court’s decision “stunning” and accusing her fellow justices of having “opted to bury their heads in the sand.”
“Because the Court’s failure to act rewards tactics designed to avoid judicial review and inflicts significant harm on the applicants and on women seeking abortions in Texas, I dissent,” she wrote.
Justice Sotomayor brings stunning clarity to the Supreme Court’s decision tonight to let stand the Texas law that effectively guts abortion rights in that state pic.twitter.com/ZyFx4Cendo
— Michele Goodwin (@michelebgoodwin) September 2, 2021
The “tactics” Sotomayor is referencing are despicable. Normally, in cases like this, legal challenges to the ban would be filed against state officials. But in Texas, private citizens are the ones who have been deputized to enforce the law, not the government. The law authorizes regular people to file lawsuits against anyone who receives, performs, or aids the process of an abortion—meaning everyone from a clinic’s medical staff to the Lyft driver who transports a person to their appointment is susceptible to being sued. There’s also no limit to how many suits can be filed against a person or business. (The law also awards anyone who wins their suit against an abortion provider at least $10,000.)
it’s basically using the law to intimidate
— Imani Gandy (@AngryBlackLady) September 1, 2021
“In effect, the Texas legislature has deputized the state’s citizens as bounty hunters, offering them cash prizes for civilly prosecuting their neighbors’ medical procedures,” writes Sotomayor.
Not only is this law designed to flood abortion providers with frivolous lawsuits, but it makes it incredibly difficult to challenge in court. And, as Sotomayor wrote, “the State’s gambit worked.”
The legislature fashioned this scheme because federal constitutional challenges to state laws ordinarily are brought against state officers who are in charge of enforcing. By prohibiting state officers from enforcing the act directly and relying instead on citizen bounty hunters, the legislature sought to make it more complicated for federal courts to enjoin the act on a statewide basis.
Taken together, the act is a breathtaking act of defiance – of the constitution, of this court’s precedents, and of the rights of women seeking abortions throughout Texas.
deputizing citizens to suppress the rights of other citizens while courts say “our hands are tied if private citizens are suppressing rights” is some real 1876 shit
— b-boy bouiebaisse (@jbouie) September 2, 2021
“It cannot be the case that a State can evade federal judicial scrutiny by outsourcing the enforcement of unconstitutional laws to its citizenry,” wrote Sotomayor.
And yet that’s exactly what the conservative court has done. They’ve upheld Texas’ weird attempt at a constitutional loophole by deputizing private citizens to be the abortion police and they’ve done it in total secret. They’ve skipped the incredibly lengthy process of letting lower courts rule, hearing arguments and sorting through mounds of evidence, and everything else that comes with putting a full Supreme Court case on the docket.
Instead, SCOTUS pushed this ruling through on a “shadow docket”—the decisions, usually made late at night with little explanation, that “defy its normal procedural regularity.” A shadow docket isn’t new but the current court has been especially terrible with theirs.
The Supreme Court has done all sorts of terrible things via the shadow docket—like letting the Biden administration eviction moratorium lapse and now gutting abortion rights law! pic.twitter.com/d4WF27N4kO
— Jessica Mason Pieklo (@Hegemommy) September 1, 2021
Joe Biden has released a statement condemning the court’s decision and you know it’s bad because it actually says “abortion”—a word Biden notoriously avoids. He says he is instructing the newly formed Gender Policy Council and the Office of the White House Counsel “to launch a whole-of-government effort to respond to this decision.”
“The dissents by Chief Justice Roberts, and Justices Breyer, Sotomayor, and Kagan all demonstrate the error of the Court’s action here powerfully,” Biden says in statement on the Texas abortion law ruling. pic.twitter.com/T0Kodhmcjt
— Jennifer Jacobs (@JenniferJJacobs) September 2, 2021
This isn’t the end of the fight for abortion access in Texas but it is an incredibly upsetting hurdle. It has also set the stage for what to expect when SCOTUS hears Jackson Women’s Health Organization v. Dobbs, a formal (and totally unconstitutional) abortion challenge that’s on the actual docket this term.
(image: Sergio Flores/Getty Images)
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