Supreme Court Refuses to Block Near-Total Texas Abortion Ban Enforced by Citizens As “Bounty Hunters”

The Supreme Court on Wednesday refused to block a near-total abortion ban in Texas that would be enforced by citizens, The New York Times reports.

The court voted 5 to 4 to allow the ban to remain in place pending legal challenges with Chief Justice John Roberts joining the court’s three liberals in dissent.

Texas took a novel approach to their law, which bans abortion after six weeks, before most women even know they are pregnant. The law allows any non-government employee to sue abortion providers or anyone who helps a woman get an abortion after six weeks -- including counselors, relatives, friends, and cab drivers -- and win $10,000 plus court costs without any penalty if they lose.

The ruling effectively gutted the court’s precedent on abortion, which previously prevented states from banning abortion before 22 weeks. Reproductive rights advocates now worry that law will be copied in other states.

The court’s conservatives did not rule on the constitutionality of the law but effectively punted until a valid legal challenge is presented.

“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,” the majority decision said, effectively arguing that the reproductive health group that sued did not have standing.

Roberts dissents:

Roberts, the only conservative justice to dissent, said he would have stayed the ban pending legal challenges.

“The statutory scheme before the court is not only unusual, but unprecedented,” he wrote. “The legislature has imposed a prohibition on abortions after roughly six weeks, and then essentially delegated enforcement of that prohibition to the populace at large. The desired consequence appears to be to insulate the state from responsibility for implementing and enforcing the regulatory regime.”

“Although the court denies the applicants’ request for emergency relief today,” he added, “the court’s order is emphatic in making clear that it cannot be understood as sustaining the constitutionality of the law at issue.”

Liberals slam “bounty hunter” law:

Justice Sonia Sotomayor said it was “stunning” that the majority flouted decades of precedent while "the Texas Legislature has deputized the state's citizens as bounty hunters, offering them cash prizes for civilly prosecuting their neighbors' medical procedures.”

“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,” she wrote. “The court has rewarded the state’s effort to delay federal review of a plainly unconstitutional statute, enacted in disregard of the court’s precedents, through procedural entanglements of the state’s own creation. 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.”

Justice Elena Kagan criticized the court for issuing the decision on the “shadow docket” without going through full briefings and arguments.

“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,” she wrote. “Yet the majority has acted without any guidance from the court of appeals — which is right now considering the same issues. It has reviewed only the most cursory party submissions, and then only hastily. And it barely bothers to explain its conclusion — that a challenge to an obviously unconstitutional abortion regulation backed by a wholly unprecedented enforcement scheme is unlikely to prevail.”

“In all these ways,” she added, “the majority’s decision is emblematic of too much of this court’s shadow-docket decision making — which every day becomes more unreasoned, inconsistent and impossible to defend.”


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