Thursday, September 2, 2021
By a vote of 5-4, the US Supreme Court denied abortion providers' request to stay the operation of a new Texas law banning abortion after six weeks. The split was Alito, Thomas, Gorsuch, Kavanaugh, and Coney Barrett in the majority and Sotomayor, Breyer, Kagan, and Roberts in the dissent.
Here is the opinion: Whole Women's Health v. Jackson
The majority highlight the unique procedures established by the Texas law requiring private citizen enforcement.
The applicants now before us have raised serious questions regarding the constitutionality of the Texas law at issue. But their application also presents complex and novel antecedent procedural questions on which they have not carried their burden. For example, federal courts enjoy the power to enjoin individuals tasked with enforcing laws, not the laws themselves. And it is unclear whether the named defendants in this lawsuit can or will seek to enforce the Texas law against the applicants in a manner that might permit our intervention
In particular, this order is not based on any conclusion about the constitutionality of Texas’s law, and in
no way limits other procedurally proper challenges to the Texas law, including in Texas state courts.
For a blog post on Justice Kavanaugh's prior thinking in a stay of an abortion case, somewhat following his assent to the majority here while also seeming to follow Roberts' approach, see Supreme Court Temporarily Block Louisiana Abortion Law Requiring Doctors Admitting Privileges
All dissenting Justices wrote separate opinions.
Roberts focused on the standards of stays and temporary injunctions and maintaining the status quo.
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.
Breyer disagreeing that the procedural posture is relevant, and focused on the imminent harm to the plaintiffs, one of the traditional factors in granting temporary relief:
I recognize that Texas’s law delegates the State’s power to prevent abortions not to one person (such as a district
attorney) or to a few persons (such as a group of government officials or private citizens) but to any person. But I do not see why that fact should make a critical legal difference. That delegation still threatens to invade a constitutional right, and the coming into effect of that delegation still threatens imminent harm. Normally, where a legal right is “‘invaded,’” the law provides “‘a legal remedy by suit or action at law.’” Marbury v. Madison.
Sotomayor blatantly calls out the Court for its decision on the merits and procedurally.
The Court’s order is stunning. 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. Last night, the Court silently acquiesced in a State’s enactment of a law that flouts nearly 50 years of federal precedents. Today, the Court belatedly explains that it declined to grant relief because of procedural complexities of the State’s own invention. Ante, at 1. 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....
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....
Today, the Court finally tells the Nation that it declined to act because, in short, the State’s gambit worked. The structure of the State’s scheme, the Court reasons, raises “complex and novel antecedent procedural questions” that counsel against granting the application, ante, at 1, just as the State intended. This is untenable. It cannot be the case that a State can evade federal judicial scrutiny by outsourcing the enforcement of unconstitutional laws to its citizenry....
The Court should not be so content to ignore its constitutional obligations to protect not only the rights of women, but also the sanctity of its precedents and of the rule of law.
Kagan takes on the shadow docket and the shadowy state procedure:
The Court thus rewards Texas’s scheme to insulate its law from judicial review by deputizing private parties to
carry out unconstitutional restrictions on the State’s behalf. As of last night, and because of this Court’s ruling, Texas law prohibits abortions for the vast majority of women who seek them—in clear, and indeed undisputed, conflict with Roe and Casey. Today’s ruling illustrates just how far the Court’s “shadow-docket” decisions may depart from the usual principles of appellate process. That ruling, as everyone must agree, is of great consequence.