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Justices Reject Request to Put Texas Abortion Case on Faster Track

January 21, 2022 by Dan McCue
Justices Reject Request to Put Texas Abortion Case on Faster Track
Abortion rights activists rally at the Texas State Capitol on September 11, 2021, in Austin, Texas. (Jordan Vonderhaar/Getty Images/TNS)

WASHINGTON — The Supreme Court on Thursday rejected a request from Texas abortion clinics to immediately return pending litigation over the state’s six-week abortion ban to a federal district court.

The unsigned order, issued without comment, apparently divided the court on ideological lines as it came accompanied by dissents from the three liberal justices on the court.

As readers of The Well News may remember, the Texas law was one of two abortion cases taken up by the justices this term. 

It is one of several laws passed in Republican-led states aimed not only at banning abortions, but also at serving as a catelyst to overturn Roe v. Wade, the landmark 1973 ruling that recognized a constitutional right to abortion before a fetus is viable, typically at about 24 weeks of pregnancy.


The other case heard this term was out of Mississippi.

Not only does the Texas law, S.B. 8, dramatically reduce the number of weeks abortions are available to women who may want one, it also authorizes citizens to file private lawsuits against those who perform, aid or abet an abortion after fetal cardiac activity is detected.

Victorious plaintiffs in successful suits under S.B. 8 are eligible to receive an award of at least $10,000.

The law effectively bans abortions after six weeks – before many women even know they are pregnant – and includes no exceptions for rape or incest. 

For most of the life of the Texas case, proceedings have focused mainly on procedural matters and the chapter dealt with on Thursday was no different.

Last month, a divided Supreme Court ruled that abortion providers could contest the ban in federal court and list Texas state licensing officials as defendants.

At the time, abortion providers asked the justices to send the case back to the same federal district court in Texas where a judge had previously kept it from going into effect.

The justices, however, opted to return the case to the conservative 5th U.S. Circuit Court of Appeals, which has allowed the ban to remain in effect while the case proceeds.


Since then the 5th Circuit has placed the case on an even slower course.

Earlier this month, a divided three-judge panel asked the Texas Supreme Court to review the law and certify whether state licensing officials could appropriately be held as defendants.

At best, state certification could dramatically prolong the litigation; at worst it could seriously narrow abortion providers’ ability to seek redress.

That’s what prompted the abortion providers to go back to the Supreme Court and seek a change in venue.

As already noted, the majority did not explain the rationale for their decision.

But Justice Sonia Sotomayor sharply rebuked the majority in a dissent that was joined by fellow liberal justices Stephen Breyer and Elena Kagan.

“Instead of stopping a 5th Circuit panel from indulging Texas’ newest delay tactics, the court allows the state yet again to extend the deprivation of the federal constitutional rights of its citizens through procedural manipulation,” Sotomayor wrote. “The court may look the other way, but I cannot.”

“Today’s decision shows that any hope that Whole Woman’s Health II might protect the Constitution’s guarantees in this case was illusory,” the justices continued. “As it turns out, Texas did not even have to amend its law to sidestep the minimal relief this court left available. 

“Instead, Texas wagered that this court did not mean what little it said in Whole

Woman’s Health II or, at least, that this court would not stand behind those words, meager as they were. That bet has paid off,” Sotomayor said.

“Despite this court’s protestations over the ‘extraordinary solicitude’ it gave in this case and the narrowness of any dispute, it accepts yet another dilatory tactic by Texas. As a result, the district court will remain powerless to address S. B. 8’s unconstitutional chill on abortion care, likely for months to come,” she said.


“This case is a disaster for the rule of law and a grave disservice to women in Texas, who have a right to control their own bodies,” Sotomayor said, adding, “I will not stand by silently as a state continues to nullify this constitutional guarantee.” 

Dan can be reached at [email protected] and at https://twitter.com/DanMcCue.

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