Supreme Court won’t hear new issue in Texas abortion law fight

‘The Court may look the other way, but I cannot,’ Justice Sonia Sotomayor wrote in a dissent

Reproductive rights activists hold cut out photos of the Supreme Court justices as oral arguments are held in December on the constitutionality of Mississippi's restrictive ban on abortion after 15 weeks. (CQ Roll Call file photo)
Reproductive rights activists hold cut out photos of the Supreme Court justices as oral arguments are held in December on the constitutionality of Mississippi's restrictive ban on abortion after 15 weeks. (CQ Roll Call file photo)
Posted January 20, 2022 at 5:30pm

The Supreme Court won’t step back into the legal challenge over a Texas law that effectively bans abortions after around six weeks of pregnancy, rejecting a request from abortion providers to clarify procedural next steps in the case.

The court on Thursday declined a petition from Whole Woman’s Health, which comes after a Supreme Court ruling in the case on separate procedural grounds. The majority did so in one line.

The three justices on the liberal wing dissented from Thursday’s order, with Justice Sonia Sotomayor noting that this was the fourth time the Supreme Court passed on a chance to “protect pregnant Texans from egregious violations of their constitutional rights.”

The action follows a sharply divided 5-4 ruling that gave the abortion providers a narrow legal pathway to challenge the law but allowed it to stay in effect while the lawsuits played out in lower courts.

That initial December ruling made clear that the Texas law, written in a way that clearly violates nearly 50 years of abortion rights law and with the intent of avoiding legal challenges that could prevent it from going into effect, had successfully accomplished that for now.

The law is contrary to the court’s long-standing decisions, including Roe v. Wade in 1973, which found that states could not enact laws to ban abortions before viability, or when a fetus could survive outside the womb on its own, at about 24 weeks of pregnancy.

But Sotomayor noted Thursday that the litigation subsequently has stalled at the U.S. Court of Appeals for the 5th Circuit, which should have immediately sent the case to a federal district court but instead asked the Texas Supreme Court to decide an issue in the case.

That means a federal district court will “remain powerless to address the law’s unconstitutional chill on abortion care, likely for months to come,” Sotomayor wrote.

“Instead of stopping a Fifth Circuit panel from indulging Texas’ newest delay tactics, the Court allows the State yet again to extend the deprivation of the federal constitutional rights of its citizens through procedural manipulation,” Sotomayor wrote. “The Court may look the other way, but I cannot.”

In a separate dissent, Justice Stephen G. Breyer wrote that the 5th Circuit “ignored our judgement.”

Texas designed the law to frustrate federal court review.

The Supreme Court first had allowed the law to go into effect more than four months ago in a 5-4 decision. The majority found that the abortion providers had raised “serious concerns” about the constitutionality of the law, but cited the “complex and novel” procedural questions raised by its unusual design.

Texas forbade state officials from enforcing the law and instead gave that authority to private citizens, who can file state civil actions for minimum damages of $10,000 against those who perform abortions. That so far has outflanked the typical process to halt enforcement of a law while a constitutional challenge moves through the court system.

Last month’s ruling addressed those procedural questions and did not directly address the merits of the constitutionality of the Texas abortion law.

In a separate case, the justices are expected to decide by the end of the term at the end of June a case about the constitutionality of Mississippi’s ban on abortion after 15 weeks of pregnancy. At oral argument in December, the conservative majority sounded ready to allow states to curb abortion rights.