In a midnight ruling almost 24 hours after a draconian anti-abortion law took effect in Texas, the conservative majority on the U.S. Supreme Court denied a request to stay the law.
Chief Justice John Roberts, a George W. Bush appointee, joined the court’s three liberals in dissenting a decision that experts was has functionally overturned Roe v. Wade.
The majority decision, which was unsigned and was not listed as a per curiam, permits the law which bans abortion at just 6 weeks and makes no exceptions for rape and incest. But most chillingly, it creates what amounts to a framework for legitimizing vigilante extremism. The new law will be enforced by private lawsuits which can be filed by anyone, even if they live out of state or have no personal connection to the case, against almost anyone they believe to have been involved in an abortion that violates the restriction.
Anyone who succeeds in such lawsuits will receive a $10,000 bounty from the state of Texas and will have their legal fees paid for. If they lose a lawsuit, they will be required to pay their legal costs but will otherwise not be punished, while the defendant will still have to pay their own legal costs regardless of outcome.
In a scathing dissent, Justice Sotomayor said: “The Court’s order is stunning. 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.”
“This is untenable. It cannot be the case that a state can evade federal judicial scrutiny by outsourcing the enforcement of unconstitutional laws to its citizenry,” Sotomayor continued, later adding, “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,” she continued.
“In effect,” Sotomayor aptly explained, “the Texas Legislature has deputized the State’s citizens as bounty hunters, offering them cash prizes for civilly prosecuting their neighbors’ medical procedures.”
In a separate dissent, Justice Kagan said: “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,” and noted that the Texas law was in clear, and indeed undisputed, conflict with Roe and Casey.”
Justice Roberts, in his own dissent, warned that the law “is not only unusual, but unprecedented … the desired consequence appears to be to insulate the state from responsibility,” though he indicated in his dissent he might have voted to uphold the law had it come through the normal course of appeals.
You can read the full decision, and the dissents, here.
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