We reported yesterday on the U.S. Supreme Court’s apparent decision not to prevent a new Texas law from taking effect that essentially bans abortion in the state and puts enforcement in the hands of private snitches who can collect a bounty for ratting on women who might even be thinking about an abortion.
Just before midnight Wednesday, an unsigned 5-4 decision gave a poor explanation for allowing an end to a constitutional right to abortion in Texas to take effect without a hearing. It was another of the “shadow docket” rulings for which the radical court is becoming famous thanks to ideologues packed onto the court by the Republican Senate. The shadow docket rulings suit the majority’s political desires, not textualism.
The late release of the ruling prevented all but a perfunctory mention of the dissenters in, for example, this morning’s Arkansas Democrat-Gazette.
The dissenters deserve some attention. Even Chief Justice John Roberts said Texas’ “unusual, unprecedented” enforcement plan deserved more scrutiny, which a temporary injunction would allow. From the Washington Post’s extensive coverage, which includes links to the decisions:
Justice Sonia Sotomayor was more heated in her dissent: “The Court’s order is stunning,” she wrote. “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.”
The unsigned opinion said it was unclear whether defendants could enforce the law, put in the hands of private complainants who can sue, win damages and effectively chill the rights of anyone able to seek an abortion before the “heartbeat” rule kicks in six weeks after a woman’s last period. Should a woman prevail against such a complaint, she’d be entitled to nothing.
Liberal Justices Sotomayor, Stephen G. Breyer and Elena Kagan joined Roberts, but each wrote separate opinions saying the Texas law clearly violated the court’s precedents regarding a woman’s right to an abortion.
Sotomayor’s was the most severe. The Texas law “is a breathtaking act of defiance — of the Constitution, of this Court’s precedents, and of the rights of women seeking abortions throughout Texas,” she wrote, criticizing her colleagues in the majority for rewarding the state’s “gambit.”
Sotomayor usually ends such opinions, “I respectfully dissent.” In this one, she wrote simply, “I dissent.”
Texas’s law delegates to private individuals the power to prevent a woman from obtaining an abortion during the first stage of pregnancy. But a woman has a federal constitutional right to obtain an abortion during that first stage.
Wrote Sotomayor further:
The Texas Legislature was well aware of this binding precedent. To circumvent it, the Legislature took the extraordinary step of enlisting private citizens to do what the State could not. The Act authorizes any private citizen to file a lawsuit against any person who provides an abortion in violation of the Act, “aids or abets” such an abortion (including by paying for it) regardless of whether they know the abortion is prohibited under the Act, or even intends to engage in such conduct. §3 (to be codified at Tex. Health & Safety Code Ann. §171.208). Courts are required to enjoin the defendant from engaging in these actions in the future and to award the private-citizen plaintiff at least $10,000 in “statutory damages” for each forbidden abortion performed or aided by the defendant. Ibid. 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.
One legal commentator noted that the last time U.S. law authorized private bounty hunters was in the days when private citizens were paid for running down fugitive slaves.
Without full briefing or argument, and after less than 72 hours’ thought, this Court greenlights the operation of Texas’s patently unconstitutional law banning most abortions. 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. 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, the majority’s decision is emblematic of too much of this Court’s shadowdocket decisionmaking—which every day becomes more unreasoned, inconsistent, and impossible to defend. I respectfully dissent.
Look for this tactic to defeat voting rights. To protect Trump administration corruption. To do just about anything dictated by Republican autocratic orthodoxy.
Democracy is hanging by a thread.
The filibuster must end. Congress must protect women’s medical autonomy and the right to vote. If it does not, we are doomed.
Meanwhile, a website is already up and running for people to report suspicious women or those who might “aid and abet” them, such as an Uber driver who provided transportation to a clinic, or maybe the state line. Perhaps an airlift for Texas women is in order, several commentators have written.
Brett Kavanaugh could be trusted to respect precedent on abortion, Sen. Susan Collins famously said in supporting the nomination of the angry, hard-drinking, gambling, accused sexual predator and author of the infamous Starr report.
Dark day for more reasons than this singular case.
And, of course, the Bully of Bigelow is ready to follow Texas. The legislation he posts doesn’t appear to include Texas’ private anti-abortion Gestapo, the gambit that the radical Supreme Court majority used to let it take effect. But give him time.