The Supreme Court has declined to prevent a new law in Texas that severely restricts abortion access from coming into effect. The law will effectively ban all abortions in the state after around six weeks of pregnancy in what reproductive rights advocates view as a blow to the precedent set in Roe v. Wade.
The court made the decision in a 5-4 vote with Chief Justice John Roberts joining the court's three liberals in dissent. The three justices appointed by former President Donald Trump provided the crucial votes to let the law—Senate Bill (SB) 8—go ahead.
Associate Justices Neil Gorsuch, Brett Kavanaugh and Amy Coney Barrett joined Samuel Alito and Clarence Thomas in refusing an application for an emergency stay of the Texas law.
The Supreme Court issued an unsigned order just before midnight on Wednesday. Unsigned orders are not unusual in applications like this one.
The order pointed out that it addressed the request for a stay only and did not address SB8's constitutionality. No court has yet ruled on that matter and a legal challenge is ongoing.
The majority's decision hinged on the fact that Texas state employees have no power to enforce SB8. Instead, the law allows enforcement by private citizens.
Critics charge SB8 was designed to get around the precedent set in 1973's landmark decision Roe v. Wade, which established a right to abortion nationwide. The court's failure to grant an injunction will be seen as undermining that precedent.
"In reaching this conclusion, we stress that we do not purport to resolve definitively any jurisdictional or substantive claim in the applicants' lawsuit," the order said.
"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."
All four dissenting justices filed an opinion. Chief Justice Roberts said he would have granted an injunction against SB8, which prohibits abortion after what the law defined as a "fetal heartbeat" is detected. This can be within the first six weeks of pregnancy, before many women know they're pregnant and the term itself is controversial.
SB8 does not impose criminal penalties for illegal abortions but empowers ordinary citizens to enforce the law through lawsuits against doctors and others who assist women in getting abortions. Anyone who sues successfully would be entitled to at least $10,000.
Associate Justice Sonia Sotomayor, who was appointed by former President Barack Obama, wrote in her dissent that the court's order was "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," Sotomayor wrote.
She took aim at the $10,000 figure, saying: "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."
Sotomayor called SB8 "a breathtaking act of defiance" and added: "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."
SB8 took effect on Wednesday after the Supreme Court failed to act on an application for emergency relief filed by Texas abortion providers. However, the law's constitutionality has not yet been tested in the courts.
