The nation’s high court agreed to fast track a review of the law, with the court beginning arguments in the case on 1 November. But the ban will remain in effect, the court ruled on 22 October.
Justice Sotomayor wrote in a seven-page opinion that she “cannot capture the totality of this harm in these pages” and criticised the court’s apparent flattening of constitutional rights protected under the landmark 1973 decision in Roe v Wade, which provides constitutional protections for women’s healthcare.
“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,” she wrote. “The State’s gambit has worked. The impact is catastrophic.”
Texas Governor Greg Abbott signed Senate Bill 8 into law earlier this year, banning abortions at six weeks of pregnancy – before many people are even aware they are pregnant – including in cases of rape or incest.
“As I write these words, some of those women do not know they are pregnant,” Justice Sotomayor wrote in her dissent.
She stressed that “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” and may spent thousand of dollars and several days seeking care from out-of-state providers overwhelmed with other patients, or “resort to dangerous methods of self-help”.
“None of this is seriously in dispute,” she wrote. “These circumstances are exceptional. Women seeking abortion care in Texas are entitled to relief from this court now.”
Nancy Northup, president and CEO of the Center for Reproductive Rights, which is challenging the law, said in a statement that the court’s decision to leave the ban in place while the law is under view is “forcing those with means to leave the state to access constitutionally protected abortion services and leaving others with no options at all”.
“However, we are confident that when the court ultimately rules in these cases, it will reject the state of Texas’ cynical ploy to enact a brazenly unconstitutional abortion ban,” she said.
The court will hear two challenges in its review of the Texas law – one from the Center and other groups and one against the state of Texas by the US Department of Justice.
Last week, the Justice Department urged the high court to block the Texas law, arguing that leaving it place is a “plainly unconstitutional” reversal of precedent. The law is “an affront to the United States’ sovereign interests in maintaining the supremacy of federal law and ensuring that the traditional mechanisms of judicial review endorsed by Congress and this court remain available to challenge unconstitutional state laws”, the agency wrote in its brief to the court.
The Supreme Court will also hear another abortion rights case, involving a Mississippi law, in December. That case involves a challenge to a state law banning abortions after 15 weeks. With the court’s new conservative majority, anti-abortion proponents have hoped a ruling in that challenge will effectively eliminate the constitutional precedent established by Roe v Wade.
Amy Hagstrom Miller, president and CEO of Whole Woman’s Health and Whole Woman’s Health Alliance, the lead plaintiff in the Texas case, said that the “legal limbo is excruciating for both patients and our clinic staff”.
“Lack of access to safe abortion care is harming our families and communities and will have lasting effects on Texas for decades to come,” she said in a statement.
The organisation has had to “turn hundreds of patients away” since the ban took effect, and the latest Supreme Court ruling means “we’ll have to keep denying patients the abortion care that they need and deserve,” she said.
Brigitte Amiri, deputy director of the ACLU Reproductive Freedom Project, called the decision “an alarming signal that it will stand idly by while our reproductive rights are violated”.
Anti-abortion group Texas Right to Life hailed the high court’s latest move. Spokesperson Kimberlyn Schwartz called it “a great development for the pro-life movement” because justice “will actually discuss whether these lawsuits are even valid in the first place”.
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