The U.S. Justice Department is asking the Supreme Court of the United States for an emergency halt to the Texas SB 8 law. The law prevents people who are pregnant from obtaining an abortion after six weeks of gestation. Pregnancy is measured from the first day of a person’s last menstrual cycle and before many people realize that they are pregnant.

Why am I using the phrase “pregnant people?” It is to make it clear that pregnancy can happen to anyone who has a uterus and who is not in menopause. The phrase includes women, trans men who have a uterus, and nonbinary people who have a uterus. A person who is under the age of 18, who has begun menstruation and has become pregnant, could also be negatively affected by this horrible Texas law.

That said, the legal documents in this case use only the word woman when referring to pregnant people. To me, it doesn’t feel right to exclude the rest of the people who also have a uterus from being mentioned in the legal documents. That’s why I made a point of mentioning those groups here.


It made sense for U.S. Attorney Merrick Garland to sue Texas over SB 8. Here is a small portion of the comments he made on September 9, 2021, on the U.S. Department of Justice website regarding SB 8:

…Today, after a careful assessment of the facts and the law, the Justice Department has filed a lawsuit against the State of Texas. Our position is set out in detail in our complaint. Its basis is as follows:

SB8 bans nearly all abortions in the state after six weeks of pregnancy – before many women know they are pregnant and months before a pregnancy is viable. It does so even in cases of rape, sexual abuse, or incest.

And it further prohibits any effort to aid the doctors who provide pre-viability abortions or the women who seek them.

The Act is clearly unconstitutional under longstanding Supreme Court precedent. Those precedents hold, in the words of Planned Parenthood v. Casey, that “[r]egardless of whether exceptions are made for particular circumstances, a State may not prohibit any woman from making the ultimate decision to terminate her pregnancy before viability.”…

…The United States has the authority and responsibility to ensure that no state can deprive individuals of their constitutional rights through a legislative scheme specifically designed to prevent the vindication of those rights.

The United States also brings this suit to assert other federal interests that SB8 unconstitutionally impairs. Among other things, SB8 conflicts with federal law by prohibiting federal agencies from exercising their authorities and carrying out their responsibilities under federal laws relating to abortion services…

...The complaint therefore seeks a declaratory judgement that SB8 is invalid under the Supremacy Clause and the Fourteenth Amendment, is preempted by federal law, and violates the doctrine if intergovernmental immunity.

The United States also seeks a permanent and preliminary injunction prohibiting enforcement of the statute against the State of Texas – including against the State’s officers, employees and agents, and private parties it has effectively deputized who would bring suit under SB8…

Lawsuits Filed by the U.S Department of Justice against Texas’ SB8

On September 14, 2021, the U.S. Department of Justice filed an emergency motion for a temporary restraining order or preliminary injunction against the State of Texas. The case was United States of America v. The State of Texas. The case was presented to the United States District Court for the Western District of Texas Austin Division.

Here are some key points:

  • …The United States seeks a temporary restraining order or a preliminary injunction enjoining the enforcement of S.B. 8. This relief is necessary to protect the constitutional rights of women in Texas and the sovereign interest of the United States in ensuring that its States respect the terms of the national compact. It is also necessary to protect federal agencies, employees, and contractors whose lawful actions S.B.8 purports to prohibit.
  • Although S.B. 8 was designed to create jurisdictional obstacles to the ability of women and providers to sue to protect their rights, those obstacles do not impede the relief sought through this suit – an action brought by the United States against the State of Texas itself. The United States has the authority and responsibility to ensure that Texas cannot insulate itself from judicial review for its constitutional violations and to protect the important federal interest that S.B. 8 impairs. Accordingly, this Court should enjoin enforcement of S.B.8…
  • …The United States is likely to succeed on the merits because S.B. 8 was enacted in violation of the Fourteenth Amendment and the Supremacy Clause. The United States has the authority to seek redress from this Court against the State of Texas, particularly in light of the procedural obstacles that Texas erected to shield S.B. 8 from judicial scrutiny in suits by directly affected persons…

On October 6, 2021, U.S. District Judge Robert Pitman (nominated by then President Barrack Obama) granted the U.S. Department of Justice’s request to put the Texas law on hold. In other words, the Judge granted the preliminary injunction or temporary restraining order that the Department of Justice asked for.

The Judge wrote a 113-page ruling that was described by Amy Howe on the SCOTUS Blog.

…In a 113-page ruling on Oct. 6, U.S. District Judge Robert Pitman granted the administration’s request to put the law on hold. Observing that the right to obtain an abortion before the fetus becomes viable is “well established,” Pitman wrote that Texas was “[f]ully aware that depriving its citizens of this right” directly would be “flagrantly unconstitutional” but nonetheless created “an unprecedented and transparent statutory scheme to do just that.” Texas, Pitman continued, intentionally drafted its abortion ban “with the intent to preclude review by federal courts that have the obligation to safeguard the very rights the statute likely violates.” But “there can be no question,” Pitman concluded, that the law “operates as a ban on pre-viability abortions in the contravention of Roe v. Wade”.

SCOTUS Blog

On October 6, 2021, The United States Department of Justice posted the following on their website. It is titled: “Statement from Attorney General Merrick B. Garland Regarding Texas SB8”.

Attorney General Merrick B. Garland tonight issued the following statement regarding the U.S. District Court’s decision to issue a preliminary injunction blocking enforcement of Texas Senate Bill 8. On Sept. 9, the Justice Department filed a lawsuit to prevent the State of Texas from enforcing the law, which effectively bans most abortions in the state.

“Today’s ruling enjoining the Texas law is a victory for women in Texas and for the rule of law. It is the foremost responsibility of the Department of Justice to defend the Constitution. We will continue to protect constitutional rights against all who would seek to undermine them.”


For a moment, things were going well for people who could potentially become pregnant in Texas. But then, the State of Texas decided to file an appeal in an effort to remove the preliminary injunction or temporary restraining order imposed by U.S. District Judge Robert Pitman.

On October 8, 2021, the United States District Court of Appeals for the Fifth Circuit overturned the ruling made by Judge Robert Pitman. The Judges who made this decision were: Judge Carl E. Stewart (nominated by former President Bill Clinton), Judge Catharina Haynes (nominated by former President George W. Bush) and Judge James C. Ho (nominated by former President Donald J. Trump).

The Washington Post reported the following:

…In a 2-to-1 order, the judges gave no detailed reasoning for their action. Judges James C. Ho, a Trump nominee, and Catharina Haynes, a nominee of President George W. Bush, were in the majority. Judge Carl E. Stewart, a nominee of President Bill Clinton, dissented.

The majority cited a previous ruling in the original challenge, which said that because the ban is enforced by private individuals and not government officials, it is not clear when and how the law can be challenged in federal court…

The Washington Post

The Texas Tribune posted an article titled “Appeals court allows Texas abortion law to resume, stopping federal judge’s order to block its enforcement”. It was posted on October 8, 2021. From the article:

…A panel of 5th Circuit justices restored enforcement of the law hours after Texas asked the court to step into a lawsuit that the U.S. Justice Department filed against the state. Enforcement of the law will be allowed to continue until at least Tuesday, when a response from the Justice Department is due. After the Court considers arguments from both sides, the court can decide whether to continue allowing enforcement of the law or a lower court to once again temporarily block it.

The court would not be determining the overall case’s outcome at this point — but it would decide whether the law could continue to stand while court proceedings unfold…

The Texas Tribune

The 5th Circuit Court of Appeals late Friday temporarily allowed Texas’ near-total abortion ban – the strictest in the nation – to again be enforced after freezing a federal judge’s temporary block of the law. The state appealed the order just two days after it was issued. The Appellee (Plaintiff) in this case was the United States of America. The Appellant (Defendant) was the State of Texas. Here is what the judges decided:

IT IS ORDERED that Appellant’s emergency motion to stay the preliminary injunction pending appeal is temporarily held in abeyance pending further order by this motions panel. Appellee is directed to respond to the emergency motion by 5pm on Tuesday, October 12, 2021.

IT IS ORDERED that Appellant’s alternative motion for a temporary administrative stay pending the court’s consideration of the emergency motion is GRANTED.

U.S. 5th Circuit Court of Appeals

On October 14, 2021, the Supreme Court posted a lawsuit filed by the Department of Justice. This one is titled: United States of America, Applicant v. State of Texas. It is a continuation of the previous lawsuits, and is described as “Application to vacate stay of preliminary injunction issued by the United States Court of Appeals for the Fifth Circuit”.

Here are some key points from it:

On October 14, the United States Court of Appeals for the Fifth Circuit stayed a preliminary injunction barring enforcement of Texas Senate Bill 8 (S.B. 8). Pursuant to Rule 23 of the Rules of this Court and the All Writs Act… the Acting Solicitor General, on behalf of the United States of America, respectfully applies for an order vacating the stay.

For half a century, this Court has held that “a State may not prohibit any woman from making the ultimate decision to terminate her pregnancy before viability.”… … S.B. 8 defies those precedents by banning abortion long before viability – – indeed, before many women even realize they are pregnant. Texas is not the first state to question Roe and Casey. But rather than forthrightly defending its law and asking this Court to revisit its decisions, Texas took matters into its own hands by crafting an “unprecedented” structure to thwart judicial review.

To avoid pre-enforcement suits against state officials, Texas “delegated enforcement” of the law “to the populace at large” in a system of private bounties… …And to frustrate constitutional defenses in those private suits, Texas designed them to be so procedurally lopsided – – and to threaten such crushing liability – – that they deter the provision of banned abortions altogether.

Thus far, S.B.8 has worked exactly as intended: Except for the few days the preliminary injunction was in place, S.B. 8’s in terrorem effect has made abortion effectively unavailable in Texas after roughly six weeks of pregnancy. Texas has, in short, successfully nullified this Court’s decisions within its borders.

All of this is essentially undisputed. The Fifth Circuit did not deny any of it. Texas itself has not seriously tried to reconcile S.B. 8’s ban with this Court’s precedents – – indeed, it said not a word about the law’s constitutionality in the Fifth Circuit…

…The question now is whether Texas’s nullification of this Court’s precedents should be allowed to continue while the courts consider the United States’ suit. As the district court recognized, it should not: The United States is likely to succeed on the merits because S.B 8 is clearly unconstitutional and because the United States has authority to seek equitable relief to protect its sovereign interest in the supremacy of federal law and the availability of the mechanisms for judicial review that Congress and this Court have long deemed essential to protect constitutional rights…

The District Court properly enjoined enforcement of S.B.8. Texas has argued that the United States lacks authority to bring this suit and that the scope of the preliminary injunction is improper. The Fifth Circuit did not rely on those contentions, and the district court correctly rejected them…

The relief ordered by the District Court was Proper. The district court properly enjoined “the state of Texas, including its officers, officials, agents, employees, and any other persons or entities acting on its behalf” from “maintaining, hearing, resolving, awarding damages in, enforcing judgements in, enforcing any administrative penalties in, and administering any lawsuit brought pursuant to” S.B. 8…

This court may treat this application as a petition for a writ of certioirari before judgement. For the foregoing reasons, this Court should vacate the Fifth Circuit’s stay, put a stop to Texas’s ongoing nullification of the Court’s precedents, and restore the status quo while this litigation proceeds. In addition, this Court may construe this application as a petition for a writ of certiorari before judgement, grant the petition, and set the case for briefing and argument this Term…

On October 15, the SCOTUS Blog tweeted: “NEW: The Justice Department as expected, says it plans to ask the Supreme Court to block enforcement of the Texas law that bans abortions after six weeks of pregnancy.” This tweet was the start of the thread.

SCOTUS Blog tweeted: “A Federal district judge put the Texas law on hold last week, but yesterday the U.S. Court of Appeals for the 5th Circuit ordered the law to go back into effect. DOJ will now seek relief from the 5th Circuit’s order at SCOTUS. No timing indicated on when DOJ will file its request.”

The last tweet in the thread provided additional information:

SCOTUS Blog tweeted: “This is the second time the Texas abortion ban will be before the justices in an emergency posture. On Sept. 1, in a 5-4 ruling, SCOTUS refused to block the law in response to a lawsuit from abortion providers. This new case is a separate case filed by the DOJ.”


On October 21, 2021, SCOTUS Blog tweeted: “NEW: Texas files its response to the Justice Department’s emergency application asking the Supreme Court to block the state’s six-week abortion ban.”

The tweet linked to the Supreme Court filing made by the State of Texas. This one is titled: “The State of Texas’s opposition to the United States’ application to vacate stay of preliminary injunction issued by the United States Court of Appeals for the Fifth Circuit”.

Here is some of what Texas included in its response:

  • Texas started by referencing previous court cases regarding S.B. 8 that were brought by abortion providers. The response from Texas was supposed to be in regards to the request for by the U.S. Department of Justice, who requested the reinstatement of the preliminary injunction.
  • Texas then “doubles-down” and attempts to convince the Supreme Court that the State’s unusual decision to allow random people to act as bounty hunters is somehow acceptable. The State of Texas wrote the following:

…S.B. 8, however, specifically prohibits enforcement or threatened enforcement of the heartbeat provisions by the “state, a political subdivision, a district or county attorney, or an executive or administrative office or employee of this state or a political subdivision”…

Instead, the heartbeat provisions are enforced “exclusively through… private civil actions.”… Any private person may bring a civil action against a person who, among other things, performs a post-heartbeat abortion or aids and abets such an abortion… A successful plaintiff may obtain injunctive relief and statutory damages of not less than $10,000 … That the relief sought would impose an undue burden on a woman or group of women is an affirmative defense…

State of Texas

I want to clarify that the State of Texas is absolutely incorrect regarding when an embryo develops a heart. NPR reported correct information on September 3, 2021:

NPR asked physicians about this. Dr. Nisha Verma (an OB-GYN) said: “When I listen to an [adult] patient’s heart, the sound I’m hearing is caused by the opening and closing of cardiac valves. The sound generated by an ultrasound in very early pregnancy is quite different”, she said.

“At six weeks of gestation, those valves don’t exist. The flickering that we’re seeing on the ultrasound that early in the development of the pregnancy is actually electrical activity, and the sound you ‘hear’ is actually manufactured by the machine.”

NPR

In other words, the State of Texas is lying to the Supreme Court of the United States.

Later on in the response, the State of Texas claims that “the federal government lacks standing to bring this suit”. Clearly, this claim is nonsense, considering that the federal government absolutely is allowed to get involved in lawsuits that violate people’s constitutional rights (as S.B. 8 does). The State of Texas then makes claims that get even sketchier from there.

According to the State of Texas, “the federal government is not likely to show that it will succeed on the merits”. The State of Texas provided a one paragraph explanation of this claim:

Even if the federal government could overcome these threshold faults with its sweeping complaint, Texas is still likely to succeed on the merits because the federal government lacks a cause of action to challenge the constitutionality of SB 8 on behalf of a subset of Texas women. And, even if it did, that cause of action would fail because SB 8 does not violate any of the constitutional provisions the federal government has identified.

State of Texas

As I read through the response from the State of Texas, I found that it was very repetitive. The quality of the response reminded me of a last-minute essay from a high school student who hadn’t done any research, and hoped that if they just wrote the same thing over and over again they might pass the class.

As an example, the State of Texas claimed “the heartbeat provisions do not violate the Fourteenth Amendment”. I’ve already provided evidence that the “heartbeat provision” is nonsense, and that professionals who work with pregnant people know that an embryo does not have a heart at six weeks or less of gestation. It is the ultrasound machine that makes that sound.

The Fourteenth Amendment has four sections. The first one might be the most relevant here.

All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside. No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.

Fourteenth Amendment

In short, the State of Texas is claiming that an incredibly misleading idea about how gestation works, combined with the belief that an embryo – which does not yet have a heart – can have a heartbeat, is reason to prevent any pregnant person from having an abortion. This mistaken concept from the State of Texas actually does deprive pregnant people in Texas from enjoying their “life, liberty, or property”, because it takes away a pregnant person’s right to bodily autonomy.

Here is the conclusion of the State of Texas’s response:

The Court should deny the emergency application to vacate the Fifth Circuit’s stay pending appeal. The Court may also construe this response as a conditional cross-petition for certiorari on the question whether to revisit Roe and Casey.

State of Texas

And with that flimsy conclusion, the State of Texas has revealed the real purpose of SB 8. The entire goal was to get this obviously unconstitutional law, to the Supreme Court (that former President Trump was allowed to pack with justices that he believed would overturn Roe v. Wade).

I’ve read through many responses from Plaintiffs and Defendants who are asking for a preliminary injunction (or who are trying to prevent their opponents from getting one). It is not at all normal for the Defendants, who wrote several pages of repetitive text and some incredibly questionable ideas, to casually ask the Supreme Court to “revisit” Roe v. Wade.


What is next?

My hope is that the Supreme Court, after reading over the responses from both U.S. Attorney General Merrick Garland, and the State of Texas, decide to grant a preliminary injunction against SB 8.

Merrick Garland’s argument is well reasoned, filled with citations to sources, and fits the “template” (so to speak) about what a response should include and look like. The response from the State of Texas turned out to be nothing more than a vehicle to ask the Supreme Court to overturn Roe v. Wade.


UPDATE

On October 22, 2021, SCOTUS blog tweeted: “BREAKING: SCOTUS fast-tracks both lawsuits challenging the Texas anti-abortion law and schedules oral arguments just 10 days from now. Sotomayor writes a partial dissent castigating the court once for once again leaving the law in place in the meantime.”

SCOTUS blog also tweeted: “When it hears argument on Nov. 1, the court will not directly consider the substance of the Texas abortion law. Here are the questions presented. The first concerns Texas’ unusual private-enforcement scheme; the second concerns whether DOJ has the right to sue to block the law.”

The Supreme Court of the United States chose to take up the case “United States v Texas, Et. Al” It is described as: On application to vacate stay and petition for writ of certiorari before judgement”

Here are some key parts of the Supreme Court’s opinion – which was written by Justice Sonia Sotomayor (nominated by Barack Obama). She is the Justice who has been assigned to the Connecticut, New York, Vermont circuit.

Here is the Supreme Court’s opinion:

Consideration of the application (21A85) to vacate stay presented to Justice Alito and by him referred to the Court is deferred pending oral argument.

In addition, the application is being treated as a petition for a writ of certiorari before judgement, and the petition is granted limited to the following question: May the United States bring suit in federal court and obtain injunctive or declaratory relief against the State, state court judges, state court clerks, other state officials, or all private parties to prohibit S.B. 8 from being enforced.

The briefs of the parties in No. 21-588, limited to 13,000 words, are to be filed electronically on or before 5 p.m., Wednesday, October 27, 2021. Reply briefs, if any, limited to 6,000 words, are to be filed electronically on or before 5 p.m., Friday, October 29, 2021. Any amicus curiae briefs are to be filed electronically on or before 5 p.m., Wednesday, October 27, 2021. Booklet format briefs prepared in compliance with Rule 33.1 shall be submitted as soon as possible thereafter. The parties are not required to file a joint appendix.

This case is set for oral argument on Monday, November 1, 2021.

Justice Sonia Sotomayor included an “concurring in part and dissenting in part” opinion:

For the second time, the Court is presented with an application to enjoin a statute enacted in open disregard of the constitutional rights of women seeking abortion care in Texas. For the second time, the Court declines to act immediately to protect these women from grave and irreparable harm.

The Court is right to calendar this application for argument and to grant certiorari before judgement in both this case and Whole Woman’s Health v. Jackson, No. 21-463, in recognition of the public importance of the issues these cases raise. The promise of future adjudication offers cold comfort, however, for Texas women seeking abortion care, who are entitled to relief now. These women will suffer personal harm from delaying their medical care, and as their pregnancies progress, they may even be unable to obtain abortion care altogether. Because every day the Court fails to grant relief is devastating, both for individual women and for our constitutional system as a whole, I dissent from the Court’s refusal to stay administratively the Fifth Circuit’s order.

What follows is Justice Sotomayor’s full opinion on United States v. Texas:

I. Texas Senate Bill 8 (S. B. 8 or the Act) imposes an near categorical ban on abortions beginning at six weeks after a woman’s last menstrual period, before many women even realize they are pregnant… Rather than authorizing state officials to enforce this illegal law, the Act deputizes ordinary citizens as bounty hunters, offering $10,000 in damages (plus attorney’s fees and costs) to anyone who sues a person who provides an abortion in violation of S. B. 8, “aids or abets” such an abortion, or intends to engage in such conduct… The legislature designed this scheme to make it more complicated to enjoin the Act… … To that end, S. B. 8 also purports to restrict constitutional and procedural defenses, limit the preclusive effect of court rulings, and impose retroactive liability for services provided while the Act is enjoined if the injunction is later overturned.

In July 2021, abortion providers and advocates filed suit to challenge S. B. 8. As relevant, they sought to prevent Texas judges and court clerks from accepting S. B. 8 suits. Three days before the District Court’s scheduled hearing on preliminary injunctive relief, a panel of the Fifth Circuit stayed the proceedings. The plaintiffs applied to this Court for emergency relief. S. B. 8 took effect on September 1, and this Court denied relief that evening… The Fifth Circuit later opined that “[p]laintiffs’ claims against a state judge and court clerk are specious” on the view that the Ex parte Young exception to state sovereign immunity “explicitly excludes judges from the scope of relief it authorizes”… As a result, in the Fifth Circuit’s estimation, the abortion providers could not win relief from the law.

State sovereign immunity, however, poses no bar to a challenge by the United States. … Accordingly, after this Court issued its order in Whole Woman’s Health, the United States filed the present suit. On October 6, the District Court issued a 113-page opinion in which it thoroughly considered and carefully addressed the procedural questions presented, held this case justiciable, and enjoined the Texas law… …But a divided Fifth Circuit panel granted the State’s request for a stay pending appeal. … …Despite the fact that the instant suit presents distinct issues from those raised in Whole Woman’s Health, the Fifth Circuit majority relied entirely on rulings from that litigation. The totality of its reasoning was as follows: “The emergency motions to stay the preliminary injunction pending appeal are granted for the reasons stated in Whole Woman’s Health v Jackson…”


II. Recognizing that Texas’ scheme raises concerns of imperative public importance, this Court properly grants certiorari before judgement. See this Court’s Rule 11. However, the Court’s failure to issue an administrative stay of the Fifth Circuit’s order pending its decision on this application will have profound and immediate consequences. By delaying any remedy, the Court enables continued and irreparable harm to women seeking abortion care and providers of such care in Texas – exactly as S.B. 8’s architects intended… Whatever equities favor caution in staying a state law under normal circumstances cannot outweigh the total and intentional denial of a constitutional right to women while this Court considers the serious questions presented.

The District Court concluded that S. B. 8 “has had an immediate and devastating effect on abortion care in Texas”… …That is because the Act’s chilling effects “operate… as an effective deterrent to provision of pre-viability abortion services in Texas, precluding the vast majority of individuals from accessing this constitutional right” and causing a “dismantling of the provider network” across the State. … Before the District Court, Texas identified only one abortion that had occurred in the State beyond S. B. 8’s unlawful 6-week restriction since the law took effect. … The court explained that most abortion patients in Texas first seek care more than six weeks after their last menstrual periods…. The court found that S. B. 8 has prohibited as many as 95% of abortions previously provided in the State. …

On a human level, the District Court relied on credible declarations that described the threat of liability under S. B. 8 as “nothing short of agonizing” for abortion care providers… Providers are “seriously concerned that even providing abortions in compliance with S. B. 8 will draw lawsuits from anti-abortion vigilantes or others seeking financial gain.”… Patients are “devastated” to learn they cannot access care and the “turmoil” caused by the Act leaves them “panicked, both for themselves and their loved ones”. … Even among the few women who are able to receive abortion services in Texas, S. B. 8 pushes patients “to make a decision about their abortion before they are truly ready to do so.”…

The District Court rejected the State’s claim that Texas residents could travel to other States to access abortion care… … To be sure, the court agreed “[p]regnant people from Texas are scared and are frantically trying to get appointments” in other States… The court found, however, that many patients are unable to seek out-of-state care based on financial constraints, dangerous family situations, immigration status, or other reasons… ….These individuals “are being forced to carry their pregnancies on their own”….

The court also found that patients who are able to leave Texas have encountered restrictions and backlogs exacerbated by S. B. 8, citing evidence of the Act’s “stunning” and “crushing” impacts on clinics in Oklahoma, Kansas, Colorado, New Mexico, and Nevada… …An Oklahoma provider, for example, reported a “staggering 646% increase in Texan patients per day” occupying between 50% and 75% capacity. … … A Kansas clinic similarly reported that about half of its patients now come from Texas… …The District Court found that this “constant stream of Texas patients has created backlogs that in some places prevent residents from accessing abortion services in their own communities.”

I cannot capture the totality of this harm in these pages. But as these excerpts illustrate, the State (empowered by this Court’s inaction) has so thoroughly chilled the exercise of the right recognized in Roe as to nearly suspend it within its borders and strain access to it in other States. The State’s gambit has worked. The impact is catastrophic.

These ruinous effects were foreseeable and intentional. Were there any doubt, proponents of S. B. 8 have boasted in this very litigation that “Texas has boxed out the judiciary” and crowed that “[a]bortion… is a court-invented right that may not even have majority support on the current Supreme Court.:..

…There is no dispute that under this Court’s precedents, women have a constitutional right to seek abortion care prior to viability. As noted, S. B. 8 was created to frustrate that right by raising seemingly novel procedural issues, and it has had precisely the intended effect. Under such unique circumstances, the equities plainly favor administrative relief while this Court sorts out these issues. Every day that S. B. 8 remains in effect is a day in which such tactics are rewarded. And every day the scheme succeeds increases the likelihood that it will be adapted to attack other federal constitutional rights.

***

There are women in Texas who became pregnant on or around the day that S. B. 8 took effect. As I write these words, some of those women do not know they are pregnant. When they find out, should they wish to exercise their constitutional right to seek abortion care, they will be unable to do so anywhere in their home State. Those with sufficient resources may spend thousands of dollars and multiple days anxiously seeking care from out-of-state providers so overwhelmed with Texas patients that they cannot adequately serve their own communities. Those without the ability to make this journey, whether due to lack of money or childcare or employment flexibility or the myriad other constraints that shape people’s day-to-day lives, may be forced to carry to term against their wishes or resort to dangerous methods of self-help. None of this is seriously in dispute.

These circumstances are exceptional. Women seeking abortion care in Texas are entitled to relief from this Court now. Because of the Court’s failure to act today, that relief, if it comes, will be too late for many. Once again, I dissent.


Justice Department Asks SCOTUS to Halt Texas Abortion Law is a post written by Jen Thorpe on Book of Jen and is not allowed to be copied to other sites.

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