Protesters hold up signs as they march down Congress Ave at a pro-abortion protest

Justice Sonia Sotomayor’s Furious Dissent To “Stunning” Decision Upholding Texas’ Abortion Ban Is a Must-Read

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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.

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.

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.)

“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.”

She explains:

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.

“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.

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.”

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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Vivian Kane
Vivian Kane (she/her) is the Senior News Editor at The Mary Sue, where she's been writing about politics and entertainment (and all the ways in which the two overlap) since the dark days of late 2016. Born in San Francisco and radicalized in Los Angeles, she now lives in Kansas City, Missouri, where she gets to put her MFA to use covering the local theatre scene. She is the co-owner of The Pitch, Kansas City’s alt news and culture magazine, alongside her husband, Brock Wilbur, with whom she also shares many cats.