SCOTUS Opinion: Bare Majority Of Court Allows Texas Abortion Law To Go Into Effect

The Texas Heartbeat Act created a private right of action to sue anyone who performed or assisted in performing an abortion after a heartbeat had been detected in a fetus—generally after about six weeks from conception, but well before the viability benchmark established in Roe v. Wade, 410 U.S. 113 (1973). Abortion providers sued a state court judge, a state court clerk, various state officials including the Texas Attorney General, and a pro-life activist, seeking to stop the Act from going into effect. The Fifth Circuit declined to enter an injunction staying the Act from going into effect on September 1.

In Whole Woman’s Health v. Jackson, a five-member majority denied the request for an injunction, noting the “complex and novel antecedent procedural questions” raised by the decision to sue state actors without there being a private cause of action before the Court. The majority stressed that their decision “was not based on any conclusion about the constitutionality of Texas’s law.” Chief Justice Roberts, joined by Justices Breyer and Kagan, dissented, arguing that the consequence of permitting the Act to proceed in such circumstances, “as a model for action in other areas,” counseled for an injunction to preserve the status quo until the matter could be fully briefed. Justice Breyer, joined by Justices Sotomayor and Kagan, filed a dissent arguing that allowing the Act to go into effect threatened “imminent and serious harm” to abortion providers.

Justice Sotomayor, joined by Justices Breyer and Kagan, called the majority’s decision “stunning,” arguing that it “rewards tactics designed to avoid judicial review” and allows Texas’s “flagrantly unconstitutional law” to cause “significant harm” on women. Justice Kagan, joined by Justices Breyer and Sotomayor, lodged the last dissent, arguing that the majority’s decision on the Court’s “shadow docket” diverged from “the usual principles of appellate process” despite being of “great consequence.”

A link to the opinion is here: